CHARLES v. FRN (2018) LPELR-43922(CA)
PRACTICE AREA: CRIMINAL
PROCEDURE
INTRODUCTION
EKANEM, J.C.A. in the Appeal at hand explained the need for a
trial-within-trial procedure as follows: “The need for a
trial-within-trial arises when at the point of tendering the
extra-judicial confession of an accused person, the defence objects
to its admissibility on the ground that it was not obtained
voluntarily. The trial of the substantive charge is put on hold for
the sole purpose of determining the voluntariness of the making of
the confessional statement and hence its admissibility or
otherwise.”
On whether a Court may, at the trial-within-trial stage, delve
into the substantive suit, the learned Justice said “The law is
that a Court must be cautious in its ruling at an interlocutory
stage not to make any pronouncement or observation on the facts
which might appear to determine the main issue/s or tend to
prejudice the main issue.” he went on to say “It is my view that
this position of the law applies to a trial Court’s ruling in a
trial-within-trial. The trial Court must ensure that it makes no
pronouncement or observation which might appear to determine the
yet to be concluded substantive trial or any issue that will arise
thereat no matter how much the parties by their evidence and the
addresses of their counsel tempt it to do so.” He said further that
“ … The impression that the trial judge had already made up his
mind … was bad or unacceptable.”
He concluded by saying that: “[Trial-within-trial] is not held
for the purpose of testing the truthfulness of the content of the
statement.”
FACTS OF THE CASE
On a two-count charge, the appellant was charged alongside two
other persons for conspiracy to commit an offence and alone in
respect of his failure to declare the sum of $102,885 to the
officers and men of the Nigerian Customs Service contrary to the
provisions of Section 2(3) and Section 18 respectively of the Money
Laundering (Prohibition) Act, 2011 (as amended by Act No 1 of 2012
before the Federal High Court, Lagos Judicial Division.
The trial of the appellant and his co-accused persons commenced
on 25/4/2016. The prosecution called two witnesses. In the course
of the evidence-in-chief of the second witness for the prosecution,
the prosecution sought to tender through him several documents
including appellant’s statement made on 9/10/2015, another
statement made by appellant on the same date and a further
statement made by the appellant on 19/11/2015. Appellant’s counsel
objected to their admissibility. The objection was on the basis
that the statements were obtained contrary to Section 29 of the
Evidence Act, that is, that they were involuntary. Consequently,
the trial Court directed a trial-within-trial.
During the trial-within-trial, the prosecution called four
witnesses while the appellant testified for himself. Written
addresses were filed in which the appellant contended, inter alia,
that the respondent did not comply with Sections 15(4) and 17(2) of
the Administration of Criminal Justice Act (ACJA) 2015 in taking
the statements of the appellant. The prosecution took the stand
that the provisions were directory and not mandatory.
In its ruling delivered on 15/5/2017, the trial Court held,
inter alia, that the presence of the appellant’s legal practitioner
during the taking of his confessional statements pursuant to
Section 17(2) of the ACJA was not mandatory on account of the use
of the word “May” therein.
The trial Court ruled in favour of the respondent and
accordingly admitted the statements of the appellant in evidence as
exhibits. Aggrieved by the ruling, the appellant has appealed to
the Court of Appeal.
ISSUES FOR DETERMINATION
The following are the issues formulated by the appellant and
adopted by the Court for the just determination of this appeal:
- Whether having regard to the intendment and purpose
of the Administration of Criminal Justice Act, 2015 (ACJA) the
learned trial judge was right when he interpreted the provision of
[Section] 17(2) of the Administration of Criminal Justice Act 2015
to be permissive and not mandatory. Formulated from grounds 1 &
2. - Given the state of the law with regards to trial
within trial whether the ruling of the trial Court at interlocutory
stage is not over reaching. Distilled from grounds 3, 4, 5 and
6. - Having regard to the nature of the evidence led at
the trial and the conclusion reached by the Lower Court, whether
the judgment (sic; ruling) of the Lower Court can stand (Distilled
from grounds 7, 8 and 9).
HELD
The Court’s decision in respect of the issues raised for
determination in this appeal is as follows:
- Issue 1 was answered in the negative and same was resolved in
favour of the appellant. - Issue 2 was answered in the affirmative and same was resolved
in favour of the appellant. - Issue 3 was answered in the negative and same was resolved
against the appellant.
In the light of the above, the appeal was held to have merit
hence, it was allowed. Consequently, the ruling of the trial Court
admitting the extra-judicial statements of the appellant made on
9/10/2015, 9/10/2015 and 19/1/2015 was set aside and the said
statements are ordered to be rejected in evidence and be so
marked.
The Court further ordered that the case file should be remitted
to the Chief Judge of the Federal High Court for re-assignment to
another judge for hearing and determination to ensure compliance
with the constitutional requirement of fair hearing by an impartial
Court or Tribunal.
RATIO DECIDENDI
- EVIDENCE – TRIAL WITHIN TRIAL: Whether Court can
determine a substantive trial in its ruling on a trial within
trial
“The law is that a Court must be cautious in its ruling at an
interlocutory stage not to make any pronouncement or observation on
the facts which might appear to determine the main issue/s or tend
to prejudice the main issue. See Globe Fishing Industries Ltd v
Coker (1990) 7 NWLR (Pt.162) 265, Ogbonnaya v Adapalm (Nig.) Ltd
(1993) LPELR – 2288 (SC), Oduntan v General Oil Ltd (1995) LPELR –
2249 and Mbonu V Nigeria Mining Corporation (2006) 13 NWLR (Pt.998)
659 also reported in (2006) LPELR – 12911(CA). It is my view that
this position of the law applies to a trial Court’s ruling in a
trial-within-trial. The trial Court must ensure that it makes no
pronouncement or observation which might appear to determine the
yet to be concluded substantive trial or any issue that will arise
thereat no matter how much the parties by their evidence and the
addresses of their counsel tempt it to do so.
In its ruling in the trial-within-trial, the trial Court
remarked that the evidence the appellant gave of what transpired at
the airport before he was taken to the office of the EFCC is
exactly what is contained in the statements he objected to and that
it was a case of retracted confessional statement. I agree with
appellant’s counsel that the trial Court erred in making the
finding at that stage. What transpired at the airport was of little
or no relevance to the voluntariness or otherwise of the written
statements made at the office of the EFCC. The slip does not
however amount to the trial Court prejudging the substantive
matter.
Again the trial Court’s reference to Nsofor v State supra. does
not amount to the trial Court jumping the gun. Having erroneously
held that it was a case of retracted confession, the trial Court
only stated what the law is on retracted confessional statements.
It did not express any opinion as to the weight to be attached to
the statements.
At page 208 of the record, the trial Court in its ruling made
the following remarks.
“Now the 2nd Defendant in his evidence before the Court said he
went to see one Ojukwu Rowland who was detained at Okotie Eboh EFCC
detention office. That it was then the said Rowland told him (1st
Defendant) of one Charles Akaeze (1st Defendant) whom he never knew
as at then. That he wrote an application to see the 1st Defendant
and that he was allowed to see him. One wonders why 2nd Defendant
whom claimed he never met the 1st Defendant before in his life
decided to apply to see him while in detention. Is this evidence of
not knowing the 1st Defendant by the 2nd defendant believable? What
motivated the 2nd Defendant to come to the Commissioner’s office
for one reason and thereafter decided to change his mission to see
the 1st Defendant whom he never met. This and other questions leave
much to be desired. The above puzzles are meant for the Defendants
at their leisure time, for their sober reflections.”
The above statement of the trial Court was irrelevant to the
determination of the issue of voluntariness of the statements of
the appellant and his co-accused persons. It must be remembered
that count 1 of the charge in the substantive matter is for the
offence of conspiracy by the appellant, 2nd defendant and 3rd
defendant. Conspiracy is an agreement between two or more persons
to do an unlawful act or to do a lawful act by an unlawful means.
The appellant and his co-defendants pleaded not guilty which
implies denial of conspiring. Conspiracy is normally inferred from
circumstances. The remark of the trial Court above appears to bear
on the charge of conspiracy as the trial Court wondered why the 2nd
defendant who claimed he never met appellant before in his life
decided to apply to see him while he (appellant) was in detention.
The trial judge posed a rhetorical question as to the credibility
of the story of the 2nd defendant that he had never met appellant
before then. After posing another question as to the motivation of
the 2nd defendant in seeking to see appellant, he stated that:
“This and other questions leave much to be desired. The above
puzzles are meant for the Defendant at their leisure time for their
sober reflections.”
The Phrase “leave much to be desired” is an idiomatic expression
which shows something “to be bad or unacceptable” Oxford Advanced
Learner’s Dictionary 7th Ed. Page 396.
That leaves the impression that the trial judge had already made
up his mind that the story of the 2nd defendant that he had never
met the appellant before then was bad or unacceptable. The
observation of the trial Judge and his posers appear to bear on the
count of conspiracy which is to be determined in the main suit. No
wonder respondent’s counsel, in an understatement, described it as
“curious observation” at paragraph 4.11, page 7 of his brief of
argument. “Per EKANEM, J.C.A. (Pp. 24-28, Paras. A-A)
- EVIDENCE – TRIAL WITHIN TRIAL: Essence of trial within
trial
“The need for a trial-within-trial arises when at the point of
tendering the extra-judicial confession of an accused person, the
defence objects to its admissibility on the ground that it was not
obtained voluntarily. The trial of the substantive charge is put on
hold for the sole purpose of determining the voluntariness of the
making of the confessional statement and hence its admissibility or
otherwise. It is not held for the purpose of testing the
truthfulness of the content of the statement. See Mbang v State
(2013) 7 NWLR (Pt. 1352) 48.”Per EKANEM, J.C.A. (Pp. 23-24, Paras.
D-A)
- EVIDENCE – CONFESSIONAL STATEMENT: Whether failure to
comply with the rules for obtaining a confessional statement will
render the statement inadmissible
“One of the primary functions of the police is to investigate
all crimes which are brought to their notice and wherever possible,
to bring the perpetrators before the Courts, together with all the
relevant evidence. Controversies associated with methods used by
law enforcement agents in the interrogation of suspected persons
and the value of evidence obtained thereby has always been a source
of judicial and societal concern. In an attempt to achieve a
balance between the need to ensure that law enforcement agents are
enabled to investigate crimes thoroughly and the need to ensure the
protection of the innocent as well as the rights of the suspect,
Judges in England developed what was known as ‘Judges’ Rules’ meant
to guide the police on how far they should go when interrogating or
taking statements from suspects or prisoners. These Rules were not
rules of law but more in the nature of rules of caution. They, in
effect provided a code of behaviour for the guidance of the police
in investigation. The purpose of the Rules was to insure as far as
possible that all statements admitted in evidence, more so if
confessional in nature, were obtained freely and voluntarily. The
fact that the police have adhered to these Rules in their
investigation of a crime would guide the Judge in determining the
weight to be attached to any confessional statement made by the
accused.
Nevertheless, failure to observe the Rules would not, ipso
facto, render the statement inadmissible, as long as the statement
in issue was made freely and voluntarily; Ojegele v The State
(1988) NWLR (PT.71) 414, (1988) LPELR-2370(SC), Kasa v. The State
(1994) 6 SCNJ 1, (1994) LPELR-1671(SC); Smart v. The State (2012)
LPELR-8026 (CA); Eyop v. State (2012) LPELR-20210 (CA); Babarinde v
The State (2012) LPELR-3367(CA).
Certain provisions of Administration of Criminal Justice Act,
2015 (ACJA) are in the pattern of the Judges’ Rules and are aimed
at providing a guide for the law enforcement officers and ensuring
the protection of the innocent as well as the rights of the
suspect. Section 1(1) thereof states that its purpose is: to ensure
that the system of administration of criminal justice in Nigeria
promotes efficient management of criminal justice institutions,
speedy dispensation of justice, protection of the society from
crime and protection of the rights and interests of the suspect,
the defendant, and the victim.
Unlike the case with the Judges’ Rules which were cautionary,
the provisions of ACJA have the force of law. Non-compliance with
these provisions would automatically throw a purported confessional
statement out of the window; Zhiya v People of Lagos State (2016)
LPELR-40562(CA). I therefore share the view that the provisions of
Sections 15(7) and 17(2), as well as Section 9(3) thereof, which
are for the benefit of a suspect, are mandatory.” Per OTISI, J.C.A.
(Pp. 31-34, Paras. D-A)
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Effect
of failure to seek leave to move/argue a preliminary
objection
“It should be quickly mentioned that in the respondent’s brief
of argument, a notice of preliminary objection is given at pages 2
and 3, paragraph 2.0. Argument in respect thereof is set out at
page 3 paragraphs 2.1-2.3 of the said brief. During the hearing of
the appeal, respondent’s counsel did not seek leave to move or
argue the objection. In fact, she did not even refer to it. The
preliminary objection is therefore deemed as abandoned. I
accordingly strike out the same. See APGA V Anyanwu (2014) 7 NWLR
(Pt.1407) 541, 553 and Abba V Shell Petroleum Development Company
(Nig.) Ltd (2013) 11 NWLR (Pt.1364) 109.”Per EKANEM, J.C.A. (Pp.
3-4, Paras. E-B)
OTHER JUDGMENTS FROM THE COURT
MOHAMMED v. KANO STATE (2018)
LPELR-43913(SC)
- APPEAL – CONCURRENT FINDING(S) OF FACT(S): When will an
appellate Court interfere with the concurrent findings of the lower
courts
“This Court will not unless under special circumstances, hear
arguments seeking to disturb concurrent Judgments of the Court
below on pure questions of law: SERBEH v. KARIKARI (1939) 5 WACA
34. The established policy of this Court is that it will not, for a
third time, review the evidence unless special circumstances
justify a departure from that practice. It is clear from Order 2
Rule 32, Supreme Court Rules that when the Court of Appeal “has
affirmed the findings of fact of the Court of first instance” it is
only upon “exceptional circumstances” that this Court will for the
third time be called upon to review the evidence at the trial. The
presumption, though rebuttable in the circumstance, is that the
Courts below were right and that the Respondent is prima facie
entitled to a Judgment dismissing the appeal. The Appellant herein
has not been able to persuade me that the Courts below were in this
appeal wrong in their concurrent Judgments.”Per EKO, J.S.C. (Pp.
30-31, Paras. E-C)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF RAPE: Whether
an accused person can be convicted on the uncorroborated evidence
of the prosecution in a charge of rape
“On the whole, it is my view that there was enough corroboration
of the evidence of the prosecutrix to support the conviction of the
appellant even as I agree that evidence of the prosecutrix alone,
if it is cogent and reliable, can ground conviction in rape
cases.”Per OKORO, J.S.C. (P. 29, Paras. B-C)
- EVIDENCE – CORROBORATION/CORROBORATIVE EVIDENCE:
Definition and nature of corroborative evidence
“What is corroboration? Corroboration is evidence which supports
the victims testimony. When it is said that the evidence of the
prosecutrix was corroborated by independent witnesses, it means
that the evidence of the witnesses, supports the evidence of the
prosecutrix. Then the evidence of the prosecutrix has been
sufficiently corroborated.”Per RHODES-VIVOUR, J.S.C. (P. 23, Paras.
A-B)
- EVIDENCE – CROSS-EXAMINATION: Whether a witness may be
cross-examined as to his previous statements
“Appellant made an issue of the previous statement in writing of
PW.5. Section 232 of the Evidence Act, 2011 is very clear. A
witness, like the PW.5, may be cross-examined as to the previous
statements made by him in writing relative to the matters in
dispute in the proceeding. If however, it is intended that the
witness would be contradicted by such previous statement it is
mandatory that his attention must be drawn to those portions of the
statement which are to be used for the purpose of contradicting
him. If the accused person and or his counsel do not have the
previous statement, and the statement is with the prosecution, the
procedure to follow is by way of Notice to produce served on the
prosecution for its production.
Without following this procedure, it is idle, as the Appellant
is positing (albeit wrongly), that it be presumed under Section
167(d), Evidence Act, 2011, that the prosecutor did not produce the
said statement because its production would be unfavourable to him.
What is enacted in Section 232 of the Evidence Act is nothing but a
rule of fair play and fair dealing with witnesses. A witness should
not have his credibility impeached without giving him an
opportunity to offer explanation about his previous statement in
writing. Sections 167(d) and 232 of the Evidence Act presumption
cannot be invoked without due process.”Per EKO, J.S.C. (Pp. 31-32,
Paras. D-D)
AJUDUA v. FRN (2018)
LPELR-43923(CA)
- APPEAL – GROUND(S) OF APPEAL: Effect of ground of
appeal and/or issue for determination not derived from the judgment
appealed against
“I note that issue 3 of the appellant is said to be derived from
ground 3 of the grounds of appeal. Counsel for the appellant said
so in the course of the hearing of the appeal and in his reply
brief. Ground 3, shorn of its particulars, states:
“The Learned Trial Judge erred in law when it held that the
proof of evidence which contains substantially extrajudicial
statements obtained solely from the Respondent’s proposed witnesses
which was done after the filing of the information discloses a
prima facie case against the appellant to warrant the Appellant to
face a Criminal Trial.”
All through the ruling of the trial Court, there is no where
that that Court held that the proof of evidence disclosed a prima
facie case against the appellant. In fact at page 504 of the record
of appeal, the trial Court in its ruling stated as follows:
“Learned silk for the Defendant has made heavy weather about the
fact that there is no prima facie case against the Defendant to
warrant him standing trial. That submission is premature in the
light of the clear provision in Section 260 (2) of the ACJL which
guides this Court. It says: An objection to the sufficiency of
evidence disclosed in the proof of evidence attached to the
information shall not be raised before the close of the
prosecution’s case.”
Ground 3 therefore does not arise from the decision of the trial
Court. Rather it raises and attacks an issue not decided in the
ruling the subject of this appeal. It is therefore incompetent and
is liable to be struck out. See Okafor v. Abumofuani (2016) 12 NWLR
(Pt. 1525) 117, 134-135 and Co-operative and Commercial Bank Plc v.
Ekperi (2007) 3 NWLR (Pt. 1022) 493, 509 or (2007) 145 LRCN
571.
I accordingly strike out ground 3 of the grounds of appeal and
issue 3 formulated therefrom.”Per EKANEM, J.C.A. (Pp. 6-7, Paras.
C-F)
- CRIMINAL LAW AND PROCEDURE – JOINT TRIAL OF ACCUSED
PERSON(S): Position of the law on joint or separate trial of
persons who are charged with the same offences
“Section 151 of the ACJL provides that:
“The following persons may be charged and tried together or
separately as the Court may deem fit.
(a) when two or more persons who are charged with the same
offence or of different offences committed in same transaction
…
The provision vests the Court with the discretion to try
separately or jointly two or more persons who are charged with
having committed the same offence or offences. Thus charging the
appellant alone for offences he is alleged to have committed with
others who are at large does not offend any known rule of drafting
of information or charge.
The necessity for the separate trial of the appellant lies in
the fact that other alleged offenders are said to be at large. It
would be a clogging of the wheels of justice to hold that the
appellant can not be charged separately simply because other
alleged offenders are at large.
A person may be charged alone for the offence of conspiracy with
others at large. His conviction in such a circumstance would depend
on the evidence available. See Ogugu v. State (1990) 2 NWLR (Pt.
134) 539, 553.”Per EKANEM, J.C.A. (Pp. 23-24, Paras. B-B)
- GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL
CRIMES COMMISSION: Whether the Economic and
Financial Crimes Commission can with or without a fiat of the
Attorney-General, prosecute cases in any Court in
Nigeria
“it is clear from Section 174 (1) (a) and (b) of the
Constitution of Nigeria, 1999 (as amended) and Sections 6 (c) (m),
7 (2) (b) and (f), 13 (2) and 19 (1) of the EFCC (Establishment)
Act that the EFCC has the authority to institute and undertake
criminal proceedings against any person before any Court of law in
Nigeria (including the High Court of Lagos State) in respect of
economic and financial crimes including offences under the Advance
Fee Fraud and Other Fraud Related Offences Act (under which the
appellant is charged). It can do so in its name or the name of the
Federal Republic of Nigeria and does not require the fiat of the
Attorney-General of a State including Lagos State to do so. See
Saraki v. FRN (2016) 3 NWLR (pt. 15) 531 and Adigwe V. FRN (2013) 1
BFLR 926.”Per EKANEM, J.C.A. (Pp. 21-22, Paras. D-B)
DASUKI v. FRN & ORS (2018)
LPELR-43897(SC)
- APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Effect of
unappealed finding(s)/decision(s) of court
“There is a settled presumption that a specific finding of fact
neither challenged nor rebutted is correct: REGISTERED TRUSTEES,
APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR (Pt.6) 566; BAKARE
v. THE STATE (1987); NWLR (PT.52) 579. This Court in DARIYE v. FRN
(2015) 61 NSCQR 1457 at 1496 – 1497, re-stating its earlier stance
in ONIBUDO v. AKIBU (1982) 2 SC 60 at 63, held that the appellant
who does not appeal a specific finding of fact is deemed to have
accepted and conceded it. Facts not disputed are always taken as
established.”Per EKO, J.S.C. (P. 12, Paras. A-D)
- APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF
FACT(S): Instances where the Supreme Court will interfere with
concurrent findings of fact(s) by Lower Courts
“The appellant has not been able to show that the concurrent
findings of fact by the trial Court and the Court of Appeal that
the trial Court made no order that the appellant shall not
subsequent to the order made on 18th December, 2015, admitting him
to bail, be arrested or further arrested, investigated and
prosecuted for any other offence, is perverse. The concurrent
findings, also, that the order made on 18th December, 2015
admitting the appellant to bail was complied with on 29th December,
2015, and not flouted, upon the appellant fulfilling the bail
terms, are similarly not perverse. This Court, as a policy, remains
hesitant to interfere with concurrent findings of fact made by the
trial and intermediate Courts. It only intervenes and interferes
with such concurrent findings of fact if and only when they are
shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY
(2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592
(SC).”Per EKO, J.S.C. (Pp. 17-18, Paras. C-B)
- APPEAL – FORMULATION OF ISSUE(S) FOR DETERMINATION:
Whether an Appellate Court can rely on issues formulated by a
respondent to determine an appeal
“An appellate court, in the interest of justice can, and it is
permitted to, prefer an issue or issues formulated by any of the
parties to all or any other issues formulated by another party. It
can, even on its own, formulate an issue or issues which it
considers germane to and pertinent in the determination of the
matter in controversy: AGBAREH v. MIMRA (2008) 2 NWLR (Pt.1071)
410; MUSA SHA (JNR) & ANOR v. DARAP KWAN & ORS. (2000) 8
NWLR (Pt.670) 685. So long as it does not lead to injustice, an
appellate Court is free to adopt the issue(s) formulated by the
respondent in preference to those formulated by the appellant if
the issue(s) formulated by the respondent are more elaborate,
succinct and apt to the issues in controversy than those of the
appellant. After all, the purpose of framing issue(s) is to attain
a more judicious and proper determination of the appeal by bringing
out clearly and accurately the point or question in dispute in
order that it may be correctly isolated and addressed. The most
important thing, as submitted by the senior counsel for the 1st
respondent, is that the issue is traceable to the ground(s) of
appeal.” Per EKO, J.S.C. (Pp.
29-30, Paras. C-C)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Essential
elements of fair hearing
“It is clear from GARBA V. UNIVERSITY OF MAIDUGURI (1986) 2 SC
128; (1986) 1 NWLR (Pt.18) 550, that the right entrenched in
Section 36(1) of the Constitution has three major components;
namely:
- Fair hearing or trial (which includes audi alteram partem – i.e
hear the other party and the right agqinst bias-nemo judex in causa
sua), - the determination of the civil rights or obligation within a
reasonable time; and - by a Court or tribunal established by law.”Per EKO, J.S.C. (P.
19, Paras. A-C)
- COURT – DUTY OF COURT: Duty of an appellate Court to
consider and make pronouncements on all issues formulated by
parties
“… the learned Senior counsel submits correctly that the Court
of Appeal, being an intermediate Court must consider all issues
properly raised and formulated by the parties and pronounce on
them; and that failure to do so would result in breach of the right
to fair hearing.”Per EKO, J.S.C. (P. 29, Paras. A-B)
OKA v. STATE (2018) LPELR-43914(CA)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Attributes
of the principle of fair hearing
“I should state emphatically straight away, that fair hearing is
the touchstone of justice. And that nothing rankles the spirit and
soul of a person than a resonating feeling that he was not afforded
a fair hearing in a Court of law, in a matter that was decided
against him in that Court. That is why, in Section 36(1) of the
1999 Constitution (as amended), the hallowed principle of fair
hearing is clearly entrenched and enshrined. This principle was
succinctly reiterated in Rear Admiral Francis Agbiti v. The
Nigerian Navy (2011) 2 SCNJ 1; (2011) LPELR – 2944 (SC) at p. 47
per Adekeye, JSC, inter alia:-
“The basic criteria and attributes of fair hearing are: (a) That
the Tribunal or Court must hear both sides not only in the case but
also on material issue in the case before reaching a decision. (b)
That having regard to all the circumstances in every material
decision in the case, justice must not only be done but must
manifestly and undoubtedly be seen to have been done. The right to
fair hearing is a fundamental constitutional right guaranteed by
Section 36(1) of the 1999 Constitution; any breach of it
particularly in trials renders same null and void.”Per YAKUBU,
J.C.A. (Pp. 11-12, Paras. B-A)
- CONSTITUTIONAL LAW – RIGHT TO DEFENCE/LEGAL
REPRESENTATION: Whether an accused person must be represented by
counsel where he is charged with a capital offence
“…It is only in cases of where sanction is death penalty that
the Courts have mandated that the accused MUST be represented by
legal counsel. See Nemi & Ors v. The State (1994) 10 SCNJ
1.”Per OGUNWUMIJU, J.C.A. (P. 34, Paras. D-E)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Essential
elements of fair hearing
“The right to fair hearing guaranteed by Section 36(1) of the
Constitution has two pillars namely audi alteram partem and nemo
judex in causa sua meaning that both sides must be given every
reasonable opportunity of being heard and no one shall be a judge
in his own cause.”Per BOLAJIYUSUFF, J.C.A. (P. 36, Paras. B-C)
- EVIDENCE – CONFESSIONAL STATEMENT: Whether a court can
convict solely on the confessional statement of an accused
person
“The law is settled that an accused person can be convicted
solely on his own free and voluntary confession.” Per
BOLAJI-YUSUFF, J.C.A. (P. 37, Para. D)
Culled from Nairalaw
CHARLES
v. FRN (2018) LPELR-43922(CA)
PRACTICE AREA: CRIMINAL PROCEDURE
INTRODUCTION
EKANEM, J.C.A. in the Appeal at hand explained the need for a
trial-within-trial procedure as follows: “The need for a
trial-within-trial arises when at the point of tendering the
extra-judicial confession of an accused person, the defence objects
to its admissibility on the ground that it was not obtained
voluntarily. The trial of the substantive charge is put on hold for
the sole purpose of determining the voluntariness of the making of
the confessional statement and hence its admissibility or
otherwise.”
On whether a Court may, at the trial-within-trial stage, delve
into the substantive suit, the learned Justice said “The law is
that a Court must be cautious in its ruling at an interlocutory
stage not to make any pronouncement or observation on the facts
which might appear to determine the main issue/s or tend to
prejudice the main issue.” he went on to say “It is my view that
this position of the law applies to a trial Court’s ruling in a
trial-within-trial. The trial Court must ensure that it makes no
pronouncement or observation which might appear to determine the
yet to be concluded substantive trial or any issue that will arise
thereat no matter how much the parties by their evidence and the
addresses of their counsel tempt it to do so.” He said further that
“ … The impression that the trial judge had already made up his
mind … was bad or unacceptable.”
He concluded by saying that: “[Trial-within-trial] is not held
for the purpose of testing the truthfulness of the content of the
statement.”
FACTS OF THE CASE
On a two-count charge, the appellant was charged alongside two
other persons for conspiracy to commit an offence and alone in
respect of his failure to declare the sum of $102,885 to the
officers and men of the Nigerian Customs Service contrary to the
provisions of Section 2(3) and Section 18 respectively of the Money
Laundering (Prohibition) Act, 2011 (as amended by Act No 1 of 2012
before the Federal High Court, Lagos Judicial Division.
The trial of the appellant and his co-accused persons commenced
on 25/4/2016. The prosecution called two witnesses. In the course
of the evidence-in-chief of the second witness for the prosecution,
the prosecution sought to tender through him several documents
including appellant’s statement made on 9/10/2015, another
statement made by appellant on the same date and a further
statement made by the appellant on 19/11/2015. Appellant’s counsel
objected to their admissibility. The objection was on the basis
that the statements were obtained contrary to Section 29 of the
Evidence Act, that is, that they were involuntary. Consequently,
the trial Court directed a trial-within-trial.
During the trial-within-trial, the prosecution called four
witnesses while the appellant testified for himself. Written
addresses were filed in which the appellant contended, inter alia,
that the respondent did not comply with Sections 15(4) and 17(2) of
the Administration of Criminal Justice Act (ACJA) 2015 in taking
the statements of the appellant. The prosecution took the stand
that the provisions were directory and not mandatory.
In its ruling delivered on 15/5/2017, the trial Court held,
inter alia, that the presence of the appellant’s legal practitioner
during the taking of his confessional statements pursuant to
Section 17(2) of the ACJA was not mandatory on account of the use
of the word “May” therein.
The trial Court ruled in favour of the respondent and
accordingly admitted the statements of the appellant in evidence as
exhibits. Aggrieved by the ruling, the appellant has appealed to
the Court of Appeal.
ISSUES FOR DETERMINATION
The following are the issues formulated by the appellant and
adopted by the Court for the just determination of this appeal:
- Whether having regard to the intendment and purpose
of the Administration of Criminal Justice Act, 2015 (ACJA) the
learned trial judge was right when he interpreted the provision of
[Section] 17(2) of the Administration of Criminal Justice Act 2015
to be permissive and not mandatory. Formulated from grounds 1 &
2. - Given the state of the law with regards to trial
within trial whether the ruling of the trial Court at interlocutory
stage is not over reaching. Distilled from grounds 3, 4, 5 and
6. - Having regard to the nature of the evidence led at
the trial and the conclusion reached by the Lower Court, whether
the judgment (sic; ruling) of the Lower Court can stand (Distilled
from grounds 7, 8 and 9).
HELD
The Court’s decision in respect of the issues raised for
determination in this appeal is as follows:
- Issue 1 was answered in the negative and same was resolved in
favour of the appellant. - Issue 2 was answered in the affirmative and same was resolved
in favour of the appellant. - Issue 3 was answered in the negative and same was resolved
against the appellant.
In the light of the above, the appeal was held to have merit
hence, it was allowed. Consequently, the ruling of the trial Court
admitting the extra-judicial statements of the appellant made on
9/10/2015, 9/10/2015 and 19/1/2015 was set aside and the said
statements are ordered to be rejected in evidence and be so
marked.
The Court further ordered that the case file should be remitted
to the Chief Judge of the Federal High Court for re-assignment to
another judge for hearing and determination to ensure compliance
with the constitutional requirement of fair hearing by an impartial
Court or Tribunal.
RATIO DECIDENDI
- EVIDENCE – TRIAL WITHIN TRIAL: Whether Court can
determine a substantive trial in its ruling on a trial within
trial
“The law is that a Court must be cautious in its ruling at an
interlocutory stage not to make any pronouncement or observation on
the facts which might appear to determine the main issue/s or tend
to prejudice the main issue. See Globe Fishing Industries Ltd v
Coker (1990) 7 NWLR (Pt.162) 265, Ogbonnaya v Adapalm (Nig.) Ltd
(1993) LPELR – 2288 (SC), Oduntan v General Oil Ltd (1995) LPELR –
2249 and Mbonu V Nigeria Mining Corporation (2006) 13 NWLR (Pt.998)
659 also reported in (2006) LPELR – 12911(CA). It is my view that
this position of the law applies to a trial Court’s ruling in a
trial-within-trial. The trial Court must ensure that it makes no
pronouncement or observation which might appear to determine the
yet to be concluded substantive trial or any issue that will arise
thereat no matter how much the parties by their evidence and the
addresses of their counsel tempt it to do so.
In its ruling in the trial-within-trial, the trial Court
remarked that the evidence the appellant gave of what transpired at
the airport before he was taken to the office of the EFCC is
exactly what is contained in the statements he objected to and that
it was a case of retracted confessional statement. I agree with
appellant’s counsel that the trial Court erred in making the
finding at that stage. What transpired at the airport was of little
or no relevance to the voluntariness or otherwise of the written
statements made at the office of the EFCC. The slip does not
however amount to the trial Court prejudging the substantive
matter.
Again the trial Court’s reference to Nsofor v State supra. does
not amount to the trial Court jumping the gun. Having erroneously
held that it was a case of retracted confession, the trial Court
only stated what the law is on retracted confessional statements.
It did not express any opinion as to the weight to be attached to
the statements.
At page 208 of the record, the trial Court in its ruling made
the following remarks.
“Now the 2nd Defendant in his evidence before the Court said he
went to see one Ojukwu Rowland who was detained at Okotie Eboh EFCC
detention office. That it was then the said Rowland told him (1st
Defendant) of one Charles Akaeze (1st Defendant) whom he never knew
as at then. That he wrote an application to see the 1st Defendant
and that he was allowed to see him. One wonders why 2nd Defendant
whom claimed he never met the 1st Defendant before in his life
decided to apply to see him while in detention. Is this evidence of
not knowing the 1st Defendant by the 2nd defendant believable? What
motivated the 2nd Defendant to come to the Commissioner’s office
for one reason and thereafter decided to change his mission to see
the 1st Defendant whom he never met. This and other questions leave
much to be desired. The above puzzles are meant for the Defendants
at their leisure time, for their sober reflections.”
The above statement of the trial Court was irrelevant to the
determination of the issue of voluntariness of the statements of
the appellant and his co-accused persons. It must be remembered
that count 1 of the charge in the substantive matter is for the
offence of conspiracy by the appellant, 2nd defendant and 3rd
defendant. Conspiracy is an agreement between two or more persons
to do an unlawful act or to do a lawful act by an unlawful means.
The appellant and his co-defendants pleaded not guilty which
implies denial of conspiring. Conspiracy is normally inferred from
circumstances. The remark of the trial Court above appears to bear
on the charge of conspiracy as the trial Court wondered why the 2nd
defendant who claimed he never met appellant before in his life
decided to apply to see him while he (appellant) was in detention.
The trial judge posed a rhetorical question as to the credibility
of the story of the 2nd defendant that he had never met appellant
before then. After posing another question as to the motivation of
the 2nd defendant in seeking to see appellant, he stated that:
“This and other questions leave much to be desired. The above
puzzles are meant for the Defendant at their leisure time for their
sober reflections.”
The Phrase “leave much to be desired” is an idiomatic expression
which shows something “to be bad or unacceptable” Oxford Advanced
Learner’s Dictionary 7th Ed. Page 396.
That leaves the impression that the trial judge had already made
up his mind that the story of the 2nd defendant that he had never
met the appellant before then was bad or unacceptable. The
observation of the trial Judge and his posers appear to bear on the
count of conspiracy which is to be determined in the main suit. No
wonder respondent’s counsel, in an understatement, described it as
“curious observation” at paragraph 4.11, page 7 of his brief of
argument. “Per EKANEM, J.C.A. (Pp. 24-28, Paras. A-A)
- EVIDENCE – TRIAL WITHIN TRIAL: Essence of trial within
trial
“The need for a trial-within-trial arises when at the point of
tendering the extra-judicial confession of an accused person, the
defence objects to its admissibility on the ground that it was not
obtained voluntarily. The trial of the substantive charge is put on
hold for the sole purpose of determining the voluntariness of the
making of the confessional statement and hence its admissibility or
otherwise. It is not held for the purpose of testing the
truthfulness of the content of the statement. See Mbang v State
(2013) 7 NWLR (Pt. 1352) 48.”Per EKANEM, J.C.A. (Pp. 23-24, Paras.
D-A)
- EVIDENCE – CONFESSIONAL STATEMENT: Whether failure to
comply with the rules for obtaining a confessional statement will
render the statement inadmissible
“One of the primary functions of the police is to investigate
all crimes which are brought to their notice and wherever possible,
to bring the perpetrators before the Courts, together with all the
relevant evidence. Controversies associated with methods used by
law enforcement agents in the interrogation of suspected persons
and the value of evidence obtained thereby has always been a source
of judicial and societal concern. In an attempt to achieve a
balance between the need to ensure that law enforcement agents are
enabled to investigate crimes thoroughly and the need to ensure the
protection of the innocent as well as the rights of the suspect,
Judges in England developed what was known as ‘Judges’ Rules’ meant
to guide the police on how far they should go when interrogating or
taking statements from suspects or prisoners. These Rules were not
rules of law but more in the nature of rules of caution. They, in
effect provided a code of behaviour for the guidance of the police
in investigation. The purpose of the Rules was to insure as far as
possible that all statements admitted in evidence, more so if
confessional in nature, were obtained freely and voluntarily. The
fact that the police have adhered to these Rules in their
investigation of a crime would guide the Judge in determining the
weight to be attached to any confessional statement made by the
accused.
Nevertheless, failure to observe the Rules would not, ipso
facto, render the statement inadmissible, as long as the statement
in issue was made freely and voluntarily; Ojegele v The State
(1988) NWLR (PT.71) 414, (1988) LPELR-2370(SC), Kasa v. The State
(1994) 6 SCNJ 1, (1994) LPELR-1671(SC); Smart v. The State (2012)
LPELR-8026 (CA); Eyop v. State (2012) LPELR-20210 (CA); Babarinde v
The State (2012) LPELR-3367(CA).
Certain provisions of Administration of Criminal Justice Act,
2015 (ACJA) are in the pattern of the Judges’ Rules and are aimed
at providing a guide for the law enforcement officers and ensuring
the protection of the innocent as well as the rights of the
suspect. Section 1(1) thereof states that its purpose is: to ensure
that the system of administration of criminal justice in Nigeria
promotes efficient management of criminal justice institutions,
speedy dispensation of justice, protection of the society from
crime and protection of the rights and interests of the suspect,
the defendant, and the victim.
Unlike the case with the Judges’ Rules which were cautionary,
the provisions of ACJA have the force of law. Non-compliance with
these provisions would automatically throw a purported confessional
statement out of the window; Zhiya v People of Lagos State (2016)
LPELR-40562(CA). I therefore share the view that the provisions of
Sections 15(7) and 17(2), as well as Section 9(3) thereof, which
are for the benefit of a suspect, are mandatory.” Per OTISI, J.C.A.
(Pp. 31-34, Paras. D-A)
- PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Effect
of failure to seek leave to move/argue a preliminary
objection
“It should be quickly mentioned that in the respondent’s brief
of argument, a notice of preliminary objection is given at pages 2
and 3, paragraph 2.0. Argument in respect thereof is set out at
page 3 paragraphs 2.1-2.3 of the said brief. During the hearing of
the appeal, respondent’s counsel did not seek leave to move or
argue the objection. In fact, she did not even refer to it. The
preliminary objection is therefore deemed as abandoned. I
accordingly strike out the same. See APGA V Anyanwu (2014) 7 NWLR
(Pt.1407) 541, 553 and Abba V Shell Petroleum Development Company
(Nig.) Ltd (2013) 11 NWLR (Pt.1364) 109.”Per EKANEM, J.C.A. (Pp.
3-4, Paras. E-B)
OTHER JUDGMENTS FROM THE COURT
MOHAMMED v. KANO STATE (2018)
LPELR-43913(SC)
- APPEAL – CONCURRENT FINDING(S) OF FACT(S): When will an
appellate Court interfere with the concurrent findings of the lower
courts
“This Court will not unless under special circumstances, hear
arguments seeking to disturb concurrent Judgments of the Court
below on pure questions of law: SERBEH v. KARIKARI (1939) 5 WACA
34. The established policy of this Court is that it will not, for a
third time, review the evidence unless special circumstances
justify a departure from that practice. It is clear from Order 2
Rule 32, Supreme Court Rules that when the Court of Appeal “has
affirmed the findings of fact of the Court of first instance” it is
only upon “exceptional circumstances” that this Court will for the
third time be called upon to review the evidence at the trial. The
presumption, though rebuttable in the circumstance, is that the
Courts below were right and that the Respondent is prima facie
entitled to a Judgment dismissing the appeal. The Appellant herein
has not been able to persuade me that the Courts below were in this
appeal wrong in their concurrent Judgments.”Per EKO, J.S.C. (Pp.
30-31, Paras. E-C)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF RAPE: Whether
an accused person can be convicted on the uncorroborated evidence
of the prosecution in a charge of rape
“On the whole, it is my view that there was enough corroboration
of the evidence of the prosecutrix to support the conviction of the
appellant even as I agree that evidence of the prosecutrix alone,
if it is cogent and reliable, can ground conviction in rape
cases.”Per OKORO, J.S.C. (P. 29, Paras. B-C)
- EVIDENCE – CORROBORATION/CORROBORATIVE EVIDENCE:
Definition and nature of corroborative evidence
“What is corroboration? Corroboration is evidence which supports
the victims testimony. When it is said that the evidence of the
prosecutrix was corroborated by independent witnesses, it means
that the evidence of the witnesses, supports the evidence of the
prosecutrix. Then the evidence of the prosecutrix has been
sufficiently corroborated.”Per RHODES-VIVOUR, J.S.C. (P. 23, Paras.
A-B)
- EVIDENCE – CROSS-EXAMINATION: Whether a witness may be
cross-examined as to his previous statements
“Appellant made an issue of the previous statement in writing of
PW.5. Section 232 of the Evidence Act, 2011 is very clear. A
witness, like the PW.5, may be cross-examined as to the previous
statements made by him in writing relative to the matters in
dispute in the proceeding. If however, it is intended that the
witness would be contradicted by such previous statement it is
mandatory that his attention must be drawn to those portions of the
statement which are to be used for the purpose of contradicting
him. If the accused person and or his counsel do not have the
previous statement, and the statement is with the prosecution, the
procedure to follow is by way of Notice to produce served on the
prosecution for its production.
Without following this procedure, it is idle, as the Appellant
is positing (albeit wrongly), that it be presumed under Section
167(d), Evidence Act, 2011, that the prosecutor did not produce the
said statement because its production would be unfavourable to him.
What is enacted in Section 232 of the Evidence Act is nothing but a
rule of fair play and fair dealing with witnesses. A witness should
not have his credibility impeached without giving him an
opportunity to offer explanation about his previous statement in
writing. Sections 167(d) and 232 of the Evidence Act presumption
cannot be invoked without due process.”Per EKO, J.S.C. (Pp. 31-32,
Paras. D-D)
AJUDUA v. FRN (2018)
LPELR-43923(CA)
- APPEAL – GROUND(S) OF APPEAL: Effect of ground of
appeal and/or issue for determination not derived from the judgment
appealed against
“I note that issue 3 of the appellant is said to be derived from
ground 3 of the grounds of appeal. Counsel for the appellant said
so in the course of the hearing of the appeal and in his reply
brief. Ground 3, shorn of its particulars, states:
“The Learned Trial Judge erred in law when it held that the
proof of evidence which contains substantially extrajudicial
statements obtained solely from the Respondent’s proposed witnesses
which was done after the filing of the information discloses a
prima facie case against the appellant to warrant the Appellant to
face a Criminal Trial.”
All through the ruling of the trial Court, there is no where
that that Court held that the proof of evidence disclosed a prima
facie case against the appellant. In fact at page 504 of the record
of appeal, the trial Court in its ruling stated as follows:
“Learned silk for the Defendant has made heavy weather about the
fact that there is no prima facie case against the Defendant to
warrant him standing trial. That submission is premature in the
light of the clear provision in Section 260 (2) of the ACJL which
guides this Court. It says: An objection to the sufficiency of
evidence disclosed in the proof of evidence attached to the
information shall not be raised before the close of the
prosecution’s case.”
Ground 3 therefore does not arise from the decision of the trial
Court. Rather it raises and attacks an issue not decided in the
ruling the subject of this appeal. It is therefore incompetent and
is liable to be struck out. See Okafor v. Abumofuani (2016) 12 NWLR
(Pt. 1525) 117, 134-135 and Co-operative and Commercial Bank Plc v.
Ekperi (2007) 3 NWLR (Pt. 1022) 493, 509 or (2007) 145 LRCN
571.
I accordingly strike out ground 3 of the grounds of appeal and
issue 3 formulated therefrom.”Per EKANEM, J.C.A. (Pp. 6-7, Paras.
C-F)
- CRIMINAL LAW AND PROCEDURE – JOINT TRIAL OF ACCUSED
PERSON(S): Position of the law on joint or separate trial of
persons who are charged with the same offences
“Section 151 of the ACJL provides that:
“The following persons may be charged and tried together or
separately as the Court may deem fit.
(a) when two or more persons who are charged with the same
offence or of different offences committed in same transaction
…
The provision vests the Court with the discretion to try
separately or jointly two or more persons who are charged with
having committed the same offence or offences. Thus charging the
appellant alone for offences he is alleged to have committed with
others who are at large does not offend any known rule of drafting
of information or charge.
The necessity for the separate trial of the appellant lies in
the fact that other alleged offenders are said to be at large. It
would be a clogging of the wheels of justice to hold that the
appellant can not be charged separately simply because other
alleged offenders are at large.
A person may be charged alone for the offence of conspiracy with
others at large. His conviction in such a circumstance would depend
on the evidence available. See Ogugu v. State (1990) 2 NWLR (Pt.
134) 539, 553.”Per EKANEM, J.C.A. (Pp. 23-24, Paras. B-B)
- GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL
CRIMES COMMISSION: Whether the Economic and
Financial Crimes Commission can with or without a fiat of the
Attorney-General, prosecute cases in any Court in
Nigeria
“it is clear from Section 174 (1) (a) and (b) of the
Constitution of Nigeria, 1999 (as amended) and Sections 6 (c) (m),
7 (2) (b) and (f), 13 (2) and 19 (1) of the EFCC (Establishment)
Act that the EFCC has the authority to institute and undertake
criminal proceedings against any person before any Court of law in
Nigeria (including the High Court of Lagos State) in respect of
economic and financial crimes including offences under the Advance
Fee Fraud and Other Fraud Related Offences Act (under which the
appellant is charged). It can do so in its name or the name of the
Federal Republic of Nigeria and does not require the fiat of the
Attorney-General of a State including Lagos State to do so. See
Saraki v. FRN (2016) 3 NWLR (pt. 15) 531 and Adigwe V. FRN (2013) 1
BFLR 926.”Per EKANEM, J.C.A. (Pp. 21-22, Paras. D-B)
DASUKI v. FRN & ORS (2018)
LPELR-43897(SC)
- APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Effect of
unappealed finding(s)/decision(s) of court
“There is a settled presumption that a specific finding of fact
neither challenged nor rebutted is correct: REGISTERED TRUSTEES,
APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR (Pt.6) 566; BAKARE
v. THE STATE (1987); NWLR (PT.52) 579. This Court in DARIYE v. FRN
(2015) 61 NSCQR 1457 at 1496 – 1497, re-stating its earlier stance
in ONIBUDO v. AKIBU (1982) 2 SC 60 at 63, held that the appellant
who does not appeal a specific finding of fact is deemed to have
accepted and conceded it. Facts not disputed are always taken as
established.”Per EKO, J.S.C. (P. 12, Paras. A-D)
- APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF
FACT(S): Instances where the Supreme Court will interfere with
concurrent findings of fact(s) by Lower Courts
“The appellant has not been able to show that the concurrent
findings of fact by the trial Court and the Court of Appeal that
the trial Court made no order that the appellant shall not
subsequent to the order made on 18th December, 2015, admitting him
to bail, be arrested or further arrested, investigated and
prosecuted for any other offence, is perverse. The concurrent
findings, also, that the order made on 18th December, 2015
admitting the appellant to bail was complied with on 29th December,
2015, and not flouted, upon the appellant fulfilling the bail
terms, are similarly not perverse. This Court, as a policy, remains
hesitant to interfere with concurrent findings of fact made by the
trial and intermediate Courts. It only intervenes and interferes
with such concurrent findings of fact if and only when they are
shown to be perverse: ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY
(2015) 61 NSCQR 1857; ATOLAGBE v. SHORUN (1985) LPELR – 592
(SC).”Per EKO, J.S.C. (Pp. 17-18, Paras. C-B)
- APPEAL – FORMULATION OF ISSUE(S) FOR DETERMINATION:
Whether an Appellate Court can rely on issues formulated by a
respondent to determine an appeal
“An appellate court, in the interest of justice can, and it is
permitted to, prefer an issue or issues formulated by any of the
parties to all or any other issues formulated by another party. It
can, even on its own, formulate an issue or issues which it
considers germane to and pertinent in the determination of the
matter in controversy: AGBAREH v. MIMRA (2008) 2 NWLR (Pt.1071)
410; MUSA SHA (JNR) & ANOR v. DARAP KWAN & ORS. (2000) 8
NWLR (Pt.670) 685. So long as it does not lead to injustice, an
appellate Court is free to adopt the issue(s) formulated by the
respondent in preference to those formulated by the appellant if
the issue(s) formulated by the respondent are more elaborate,
succinct and apt to the issues in controversy than those of the
appellant. After all, the purpose of framing issue(s) is to attain
a more judicious and proper determination of the appeal by bringing
out clearly and accurately the point or question in dispute in
order that it may be correctly isolated and addressed. The most
important thing, as submitted by the senior counsel for the 1st
respondent, is that the issue is traceable to the ground(s) of
appeal.” Per EKO, J.S.C. (Pp.
29-30, Paras. C-C)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Essential
elements of fair hearing
“It is clear from GARBA V. UNIVERSITY OF MAIDUGURI (1986) 2 SC
128; (1986) 1 NWLR (Pt.18) 550, that the right entrenched in
Section 36(1) of the Constitution has three major components;
namely:
- Fair hearing or trial (which includes audi alteram partem – i.e
hear the other party and the right agqinst bias-nemo judex in causa
sua), - the determination of the civil rights or obligation within a
reasonable time; and - by a Court or tribunal established by law.”Per EKO, J.S.C. (P.
19, Paras. A-C)
- COURT – DUTY OF COURT: Duty of an appellate Court to
consider and make pronouncements on all issues formulated by
parties
“… the learned Senior counsel submits correctly that the Court
of Appeal, being an intermediate Court must consider all issues
properly raised and formulated by the parties and pronounce on
them; and that failure to do so would result in breach of the right
to fair hearing.”Per EKO, J.S.C. (P. 29, Paras. A-B)
OKA v. STATE (2018) LPELR-43914(CA)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Attributes
of the principle of fair hearing
“I should state emphatically straight away, that fair hearing is
the touchstone of justice. And that nothing rankles the spirit and
soul of a person than a resonating feeling that he was not afforded
a fair hearing in a Court of law, in a matter that was decided
against him in that Court. That is why, in Section 36(1) of the
1999 Constitution (as amended), the hallowed principle of fair
hearing is clearly entrenched and enshrined. This principle was
succinctly reiterated in Rear Admiral Francis Agbiti v. The
Nigerian Navy (2011) 2 SCNJ 1; (2011) LPELR – 2944 (SC) at p. 47
per Adekeye, JSC, inter alia:-
“The basic criteria and attributes of fair hearing are: (a) That
the Tribunal or Court must hear both sides not only in the case but
also on material issue in the case before reaching a decision. (b)
That having regard to all the circumstances in every material
decision in the case, justice must not only be done but must
manifestly and undoubtedly be seen to have been done. The right to
fair hearing is a fundamental constitutional right guaranteed by
Section 36(1) of the 1999 Constitution; any breach of it
particularly in trials renders same null and void.”Per YAKUBU,
J.C.A. (Pp. 11-12, Paras. B-A)
- CONSTITUTIONAL LAW – RIGHT TO DEFENCE/LEGAL
REPRESENTATION: Whether an accused person must be represented by
counsel where he is charged with a capital offence
“…It is only in cases of where sanction is death penalty that
the Courts have mandated that the accused MUST be represented by
legal counsel. See Nemi & Ors v. The State (1994) 10 SCNJ
1.”Per OGUNWUMIJU, J.C.A. (P. 34, Paras. D-E)
- CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Essential
elements of fair hearing
“The right to fair hearing guaranteed by Section 36(1) of the
Constitution has two pillars namely audi alteram partem and nemo
judex in causa sua meaning that both sides must be given every
reasonable opportunity of being heard and no one shall be a judge
in his own cause.”Per BOLAJIYUSUFF, J.C.A. (P. 36, Paras. B-C)
- EVIDENCE – CONFESSIONAL STATEMENT: Whether a court can
convict solely on the confessional statement of an accused
person
“The law is settled that an accused person can be convicted
solely on his own free and voluntary confession.” Per
BOLAJI-YUSUFF, J.C.A. (P. 37, Para. D)
Culled from Nairalaw