Instance(s) where a criminal trial/proceeding will be declared a nullity and the proper order to make in such instance; circumstances that guide the Appellate Court in ordering a retrial Principles
“…It is obvious that the Appellant was in the first instance arraigned and had pleaded “not guilty” to the charge against him along with other Accused Persons, for conspiracy to commit armed robbery and armed robbery. A prosecution witness, the PW1 Mr Saka Yinusa, a Police Officer of Ijapo Police Station, Akure had commenced his testimony.
The Prosecuting Counsel, Mr Olorunfemi had sought to tender the copy of the statement of the Complainant, Mr Adeoti Kazeem, with the aim of getting it certified by the Police Authorities at a later date, while informing the Court that he had not been able to obtain the original case file.
At that stage, the Court interjected thus: “It is unfortunate that Mr Olorunfemi Counsel for the prosecution is not diligently prosecuting this case. As Chief Legal officer of the State, he is expected to be conversant with prosecution that he needs not to be told that he would require the original case file for the prosecution and that in the absence of the original documents, copies cannot be certified.
In the interest of justice, I will adjourn this case for hearing to begin again when the prosecution comes up with the original case file. Case adjourned to 24th February, 2014 for hearing.” Clearly, by the above posture, the trial Court was in breach of the Appellant’s right of fair hearing and fair trial.
Section 36(4) to (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide as follows: “Section 36 (4.) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal: (5.) every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty:
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such the burden of proving particular facts. (6.) Every person who is charged with a criminal offence shall be entitled to -… (d) examine, in person or by his legal practitioners the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same condition as those applying to the witnesses called by the prosecution;
In the criminal prosecution under review, the trial Judge was expected to be an unbiased and impartial umpire/arbiter holding the scale of justice evenly between the prosecution and the Accused Person, Appellant herein, at every stage from the inception to the conclusion of trial.
The Appellant in person or by his Counsel was entitled to respond to the prosecution’s application for the tendering of the said complainant’s statement in evidence even if it was a copy thereof as indicated. The trial Court had no prerogative to shut the Appellant out of this as constitutionally guaranteed by adjourning the case “suo-motu” and not upon the application of the Appellant or his Counsel for an adjournment to enable him cross examine or object to the said application to tender the copy of the statement not certified.
Indeed, the prosecution of the Appellant had been hijacked and interfered with by the Judge descending into the arena. Moreover, the “suo-motu” termination of the hearing midway the PW1’s evidence, amounted to a decision by the Court. See the case of: Garuba & Ors. v. Omokhodion & 13 Ors. Pt. 4 (2011) 6 – 7 SC p. 89 and Section 318(1) of the 1999 Constitution (Supra). The word “decision” is wide enough to encompass the word “Ruling” or “Order”.
The trial Court had considered the facts and the law in respect of the use of/tendering of copies of documents in the case diary that was not an original and uncertified and arrived at an order to adjourn the case for that reason. The trial Court then ordered the case to be started “de novo”. That order was based on a usurpative role of taking over the prosecution and truncating the continuation of hearing properly commenced and ongoing.
The interference by the trial Judge in the manner it did clearly violated the fundamental right of the Appellant to a fair hearing and trial by a competent Court of law that was constitutionally enjoined to be impartial. Secondly, the Appellant was denied the right of the cross-examination of the PW1 before the “suo-motu” order for adjournment as made.
Those omissions and acts of the trial Court violated the Appellant’s fundamental right to fair hearing. It is instructive that the observance of constitutional and public rights is sacrosanct. The observance is a matter of public duty and cannot be waived by the Court. See the case of: Awuse v. Odili (2006) NWLR (Pt. 952) p. 416 at p. 527. Sequel to the above observations, the subsequent proceedings, no matter how well conducted and right the ultimate decision may be, are liable to and must be set aside. See the case of:Chief Bode Thomas v. Samuel Saliu Ali CA/AK/191/2016 delivered on 31/3/2017.
In Ejezue v. Anuwa, (supra), a breach of fair hearing was held to have been occasioned by the flaw and a mistrial in the nature of not having heard a party. See also the case of: Chime v. Onyia (2009) 2 NWLR (Pt. 1124) p. 1 at p. 51. The subsequent proceedings leading to the conviction of the Appellant herein having been based on the null order of the trial Court therefore, was itself null proceedings.
Its outcome is of no consequence in law. As adverted to hereinbefore, at the beginning of the new trial, the plea of the Appellant was taken in respect of the additional counts but not on the 1st and 2nd counts in the newly substituted charge. The trial Court explained this very grave error off, stating in its judgment that, the 1st and 2nd counts of the new charge are the same, “word for word” as the two counts of the original charge. Section 164(1) of the Criminal Procedure Act reads thus: “If a new charge is framed or alteration made to the charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.”
The Record of Appeal in this matter clearly shows that the trial Court did not advert its mind to compliance with the provisions of the above stated law. Indeed, the provisions of Sections 164 and 165 of the Act are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163 of the Act. It is settled law that, a fresh plea is an essential, indeed, an indispensable element in the trial of a new charge, which is what an amendment, no matter how trifling or seemingly inconsequential in nature does to an existing charge, before the amendment.
Thus, non-compliance with the provisions of Section 164(1) of the Act renders proceedings conducted in such situations, null and void. In the case of: Adejobi & amp; Anor. V. State (2011) LPELR – 97, the Supreme Court per Rhodes-Vivour, J.S.C., at page 40, paragraphs D – E restated the legal position that: “Section 164 of the Criminal Procedure Act is mandatory in that once the charge is amended, the accused persons must be called upon to plead to the charge as amended. Failure to call on the accused persons to plead to the new charge renders the whole proceedings a nullity. See the case of: R. V. Eronini (1953) 14 WACA, Princent v. State (2002) 12 SC (Pt. 1) pg. 137.”
The law is therefore on firm ground that, failure to read and explain any alteration or addition to a charge to an accused person and to take his plea thereto as in the instant case, renders the trial a nullity as this indeed violates the principle of fair hearing. See also the cases of: (1) Okosun v. The State (1979) All NLR p. 26 and (2) Bude v. State (2016) LPELR – 40435 (SC). Tobi, JSC (of blessed memory) stated in the case of: Nigeria Air Force v. Shekete (2002) 18 NWLR (Pt. 788) 129 at p. 151 paras. F – G; that, “The litigation is for the parties and not the Court.
Therefore, the Court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.” It is also desirable to point out that the subsequent null proceedings based on the same charges on same facts was oppressive and intended to ensure a conviction at all cost, as the statement tendered through PW1 had not been shown to be any different from that earlier sought to be tendered but stalled by the trial Court.
The Appellant, in consequence of the continuation of the case against him on a purported re-arraignment has suffered a miscarriage of justice. In this matter, I hold that there has been an error in law and procedure including the breach of the right of fair hearing that have rendered the proceedings and judgment a nullity and occasioned a miscarriage of justice.
From the facts and evidence, the proceedings of the trial Court were even liable to be quashed on an order of certiorari. See the case of: Monsurat Lawal & Ors. v. Senior Magistrate Grade II & Anor. (2013) 2-3 S.C. (Pt. IV) p. 108 at pgs. 131-132 where Sulaiman Galadima, JSC made the point clear thus: “The prerogative writ of certiorari process is meant to provide supervisory process or measure to check the excesses, arbitrariness of inferior Courts or Tribunals. See Rex v. Northumblerland Compensation Appeal Tribunal – Exparte Shaw (1952) 1 KB 338 at 346 – 347. This decision of the English Court was considered and applied in Oduwole v. Fakinwa (1990) 4 NWLR (Pt. 143) 239 at 251.
See further, the cases of Queen v. District Officer and Anor. (1961) 1 All NLR 51; Agwuegbo v. Kagoma (2000) 12 NWLR (Pt. 687) 252 at 269. The certiorari procedure is available under Section 272(1) and (2) of the 1999 Constitution and various State High Court Laws and Civil Procedure Rules. This power of control of inferior Courts or Tribunals by the High Court is exercised by means of quashing any decision of an inferior Court which on the face of it is excessive, arbitrary or oppressive.
This is the proper case that can be brought for quashing the conviction and sentence of the Appellant because of the several errors on the face of the record of the trial Court…. “ Having found the two proceedings conducted by the trial Court a nullity sequel to the fundamental irregularities in same, the entire proceedings which culminated in the conviction and sentencing of the Appellant are accordingly set aside and quashed.
Now, on the appropriate consequential order to make, having set aside and quashed the trial Court’s proceedings leading to the conviction and sentencing of the Appellant for being a nullity, I have no difficulty in the choice of that of a retrial. At this juncture, it is imperative for me to state that I am aware of the earlier decision of this Court in Appeal No. CA/AK/55CA/2015 delivered on the 19th of May, 2017. I am of the firm view and hold that the instant appeal is distinguishable from the said previous appeal on a very important point. Unlike in the previous appeal, the Appellant herein was allegedly caught in the act and arrested at the scene of crime. The Appellant was indeed shot by the Police during the face-off.
He was subsequently whisked to the hospital where he received treatment for the injuries sustained by him and later charged to the trial Court at the conclusion of Police investigation of the case. Since the present discuss is the determination of the propitiousness of the procedure employed by the trial Court, I have been cautious to not enter into and thereby decide the merits of the case by reviewing the line of reasoning and conclusion reached therein by the trial Court in its judgment under scrutiny.
The circumstances that guide this Court in ordering a retrial are chronicled in the case of: Omosaye v. State (2014) 6 NWLR (Pt. 1404) at p. 511 at p. 512, per Fabiyi, JSC as follows: 1. That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand, the Court is unable to say that there has been no miscarriage of justice.
2. That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant. 3. That there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time. 4. That the offence or offences of which the Appellant was convicted, or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial. 5. That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.
The above set out circumstances are all prevailing in the instant case. The principal count of the charge against the Appellant is armed robbery. From the proof of evidence filed along with the charge against the Appellant, a “prima facie” case for the offences charged has been made out against the Appellant, to which in law he must answer. It is a capital offence as it carries the highest magnitude of punishment, death, in our criminal justice system. See the cases of: (1) Omosaye v. State (supra); (2) Yusuf v. State (2011) 18 NWLR (Pt. 1279) p. 853; (3) Ganiyu v. State (2013) 10 NWLR (Pt. 1361) p. 29 and (4) Lasisi v. State (2013) 12 NWLR (Pt. 1367) p. 133. What is more, by reason of the nature of the exhibits tendered and witnesses fielded, a well-informed prosecutor should be able to handle a fresh trial, after all, there is no statute of limitation for criminal prosecution.
In view of the outcome of the two issues donated for consideration by the Appellants and responded to under issue two of the Respondent, issue one of the Respondent has become spent and its consideration otiose. In the light of the foregoing, I hold the firm view that an order of retrial will meet the ends of justice in this appeal. Consequentially, I remit this case to the Chief Judge of the High Court of Ondo State for re-assignment to another Judge of that Court other than himself, for an expeditious fresh trial of the Appellant.” Per OYEBISI FOLAYEMI OMOLEYE, JCA (Pp 19 – 32 Paras A – C)
Emoghwanre is vying for the position of the National Publicity Secretary of The Nigerian Bar Association