The Chief Of Air Staff & Ors V. Wing Commander P. E. Iyen (2005)
LAWGLOBAL HUB Lead Judgment Report
A.O. EJIWUNMI, JSC
The question that calls for determination in this appeal falls within a very narrow compass. And it is whether a person whose trial was a nullity should be discharged or discharged and acquitted for the offences for which he was tried and convicted. The facts relevant to the appeal are straightforward and may be put thus:- The respondent who was a Wing commander in the Nigerian Air Force was attached to its Pay Accounting Group until the month of April 1996. Before then, it was discovered that with ten other officers of the Nigerian Air Force and all attached to the Pay Accounting Group were involved with fraudulent offences which included stealing, corruption and conspiracy to commit several civil offences. As a result of this discovery, the ten officers were arraigned before the General Court Martial (GCM). But when the court was convened for the trial of the ten officers, the respondent was not present. The General Court Martial then carried out the trial of the remaining nine accused persons who were physically present before the Court. The nine officers so tried were each found guilty and convicted accordingly.
That done, the General Court Martial then proceeded with the trial of the respondent in his absence on a 12 count charge laid against him before that court. The offences disclosed in the charge include, stealing, conspiracy to defraud, forgery and altering forged documents, receiving stolen property. For the purposes of this trial, the prosecutor did not call any oral evidence in support of his case. Rather with the consent of the court pursuant to the provisions of section 34 of the Evidence Act, he merely tendered the statements of all the seven witnesses who testified at the earlier trial conducted by the General Court Martial, at the end of which the nine other accused persons were convicted. On the basis of that kind of evidence, and with the respondent who was never before that court, the court found him guilty and was convicted of eleven of the 12-count charge levelled against him. Following that conviction, he was sentenced to a total of 51 years imprisonment. A restitution order was also made against him in respect of his properties and other personal assets to the value of about N34, 125,000.00.
As the respondent was not satisfied with the judgment of the General Court Martial, he appealed to the Court below. That Court, after due consideration of the arguments advanced before it, allowed the respondent’s appeal and set aside the judgment of the General Court Martial. The Court below further ordered that the respondent be discharged and acquitted. It is against that judgment of the Court below that the appellants have appealed to this Court. Pursuant thereto, the appellants through their counsel, filed one ground of appeal, which reads thus: –
“The learned Justices of the Court of Appeal erred in law when while setting aside the judgment of the General Court Martial they discharged and acquitted the respondent.”
In accordance with the rules of this Court, the parties thereafter filed and exchanged their respective briefs of argument. For the appellants, the only issue identified for the determination of the appeal was:
“Whether having held that the General Court Martial proceedings were a nullity and that it was as if the respondent was never tried, the proper order for the Court to make was an order of Discharge and not an order of Acquittal.”
The first reaction of the respondent to the appeal was to file a notice of preliminary objection against the sole ground of appeal filed for the appellants. His learned counsel, A. I. Idigbe S.A.N., thereafter also filed a respondent’s brief. In the brief; two issues were raised which included the ground raised in the notice of preliminary objection. The issues so raised are as follows: –
“2.1 Whether in the circumstances of this case the Court of Appeal was right in discharging and acquitting the respondent and not ordering a retrial.
2.2 Whether the appellants require leave to file their sole ground of appeal being ground of mixed law and fact.”
It is manifest from a perusal of the issues set for the determination of the appeal that both parties are agreed that the main issue for the determination of this appeal is as to, whether the respondent should have been discharged and acquitted by the Court below. But before considering the arguments of counsel on this issue, I need to determine first whether there is merit in the preliminary objection raised by the respondent against the appeal.
In urging that the preliminary objection be upheld, it is the contention of learned Senior Counsel for the respondent that appellants’ ground of appeal was merely christened a ground of law when in actual fact, it consists of mixed law and facts. It is therefore his submission that it must be borne in mind that the decision whether a ground of appeal raised a question of law alone or of facts of mixed law and facts does not depend on the label given to it by the appellants. In other words, it is the submission of learned counsel that each ground of appeal must be determined solely upon what is alleged therein and no reliance ought to be placed by the court on the description given to it by the appellant. And in support, reference was made to such cases as Ojemien V. Momodu II (1993) 1 S.C.N.L.R. 18. Nwadike V. Ibekwe (1987) 4 N.W.L.R. (pt.67) 718, Adili V. State (1989) 2 N.W.L.R. (pt.103) 305, Shanu V. Afribank (2000) 10-11 S.C.1. Now, on the basis of the above submissions, it is the contention of learned counsel for the respondent that with regard to the appellants’ ground of appeal, the question that falls to be determined is whether the respondent ought to have been “discharged’ or acquitted involves a consideration of the facts of the case, the ground of appeal filed for the appellant cannot and ought not be regarded as a question of law.
For the appellants, an appellants’ reply brief was filed to deal with the arguments raised by the respondent in the preliminary objection against their ground of appeal. The said reply brief was adopted by their counsel and reliance placed thereon for that purpose during the hearing of the appeal. The main thrust of the argument of learned counsel for the appellants in their brief and her oral submissions to this court is that the alleged ground of appeal is a ground of law and urged the court to uphold it as one. The argument of counsel in respect of the preliminary objection against the ground of appeal, clearly depends on whether the said ground of appeal is indeed a ground of law. The question so raised is not novel as several decisions of this court have given the principles that should guide a court in its quest for the proper determination of whether a ground of appeal is a ground of law, a ground of mixed law and facts or simply, a ground of fact. In this regard, I refer to the decision of this court in Shanu V. Afribank (2000) 13 N.W.L.R. (pt.684) 392; (2000) 10-11 S.C. 1 and at page 9 where reference was made to Ogbechie & Ors V. Onochie & Ors (1986) Vol. 7 N.S.C.C. 443 part of the judgment of Eso, JSC, at pp 445 – 6 where he said thus: –
“…. what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, where however the grounds are such that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact.”
Ayoola JSC, then went on to explain the principles quoted above thus at pages 9-10
“These are useful guidelines but it is evident that they are not meant to be exhaustive. Where the ground of appeal complains that the tribunal has failed to fulfill an obligation cast upon it by law in the process of coming to a decision in the case, such a ground would involve a question of law, namely: whether or not there is such an obligation or whether what the tribunal did amounted to an infraction in law of such obligation, provided that all the facts needed are there on the record and are beyond controversy. A ground of appeal involves a question of law alone where in answering the question raised by the ground of appeal the appellate tribunal can determine the issue on the admitted or uncontroversial facts without going beyond a direct application of legal principles. Where it is contended by the other party that the principle of law on which the complaint is based is non-existent or misconceived, that goes to the merit of the complaint and not to the threshold question as to whether or not the question involved is one of law. The question of the merit of a ground of appeal is to be distinguished from one as to the nature of question involved in the ground.”
The complaint here is that the ground of appeal as framed, involves a resolution of facts in order to determine whether the Court below was right to have discharged and acquitted the respondent, rather than ordering that he be discharged only. It does seem to me from a careful reflection on the argument of counsel that there can be no question of a resolution of facts, bearing upon whether the ground of appeal is a ground of law or that of mixed law and facts. The learned counsel for the appellant is in my view right in her submission that there was no dispute as to the facts in the case under consideration. The position in the instant case is not in dispute that the Court below had on the evidence before it, arrived at the conclusion that the trial of the respondent before the General Court Martial cannot be described as a trial within the accepted principles of trials in our Courts. And the appellant was not by any means challenging that conclusion reached by the Court below. The only complaint canvassed in the ground of appeal in my view, is, clearly whether as the Court below has reached its conclusion upon the trial of the respondent by the General Court Martial, it was open to that court to have discharged and acquitted the respondent: I do think that the learned counsel for the appellants was right in her submission that the court at that stage was not resolving any dispute as to facts but took a decision which it is obliged to do by law. The decision of the Court may or may not be right. And it is because the appellants are of the view that the decision of the court was wrong in law that they have appealed to this court upon the ground of appeal filed against that decision of the Court below.
Earlier in this judgment, I have set down the ground of appeal in dispute and it is not necessary to reproduce it. However, having regard to what I have said above, I am clearly of the view that the ground of appeal filed for the appellants is clearly a ground of law. With that conclusion, it follows that the preliminary objection by the respondent lacks merit, and it is hereby dismissed. By its dismissal, the 2nd issue raised by the respondent is also dismissed. What now remains to be considered is the only issue raised in this appeal by the appellants.
In respect of this first issue, the question is, whether the Court below was right to have ordered that the respondent be discharged and acquitted, after that Court had held conclusively that the General Court Martial proceedings were a nullity, and was as if he was never tried. Now, it is the view of learned counsel for the appellants that the Court below was wholly wrong to have made an order of acquittal in the circumstance of the case following the trial of the respondent which learned counsel submits had been shown and indeed been accepted by the Court to have been a futile exercise. Learned counsel further submits that the proper and appropriate order that the Court should have made is an order merely discharging the respondent. In support of this submission, learned counsel made reference to the following cases: R. V. Hodge V1 Nigeria Law Reports at page 56; N.A.F. V. Ex Wing Commander L.D. James (2002) 18 N.W.L.R. (pt.798) 295; (2003) 2 SCM 57, and I.G.P. V. Marke (1957) N.S.C.C. Vol. 1 page 9. Earlier in this judgment, it was mentioned that a reply brief was filed by learned counsel for the appellants. In that brief, learned counsel referred to Tobby V. State (2001) 10 N.W.L.R. (pt. 720) 23, (2001) 8 SCM 178; Adeoye V. State (1999) 6 N.W.L.R. (pt. 605) 74; and Eyorokoromo V. The State (1979) N.S.C.C. 61.
The thrust of the argument of learned counsel for the appellants is to show that they cannot be called in aid by the learned senior counsel for the respondent to support his view that the Court below was right to have discharged and acquitted the respondent. In that regard the learned senior counsel for the respondent also referred to several decisions of this Court. They include the following cases: Adeoye V. State (1999) 6 N.W.L.R (PT. 605) 74 at 91; Okafor V. State (1976) 1 A.N.L.R. 307 at 311; Moses Okoro V. The Police (1953) 14 W.A.C.A. 370; Joseph Okosun V. State (1979) 1 A.N.L.R. 26 at 36; Ogboh V. F.R.N. (2000) 10 N.W.L.R. (pt. 774) 21 at p.38 (A-G); Yusufu Abodundu & Ors V. Oueen (1959) N.S.C.S. 56 at 60.
As I have earlier observed in this judgment, the crucial question that calls for determination in this appeal is, whether the Court below was right to have ordered that the respondent be discharged and acquitted following the firm conclusion of that Court that his trial by the General Court Martial was a nullity. This question as to whether a Court should order that an appellant be discharged simpliciter or be discharged and acquitted following the declaration that his trial was a nullity is not new to this Court. Nor is the determination whether an order of retrial be made or not as a consequence of a discharge or an order of acquittal by the Courts below. I think that on this point, it is appropriate to refer to the case of Eyorokoromo & Anor V. State (1979) 6-9 S.C. 3, 9; (1979) N.S.C.C. 61, 65, where this question was exhaustively considered. In that case, Bello, JSC, after a discussion of the historical development of the power of the Appellate Court to order a retrial where the original trial was a nullity and a review of past cases where the Court had either declined to order a retrial or had ordered one, and from which the following principles were formulated: Firstly, that the very foundation of the trial, that is, the charge or information, may be null and void; secondly, the trial Court may have no jurisdiction to try the offence, and thirdly, the trial may be rendered a nullity because of some serious error or blunder committed by the judge in the course of the trial.
As to whether an order of retrial ought to be made, it is necessary to determine that question with regard to the principles in Abodundu ‘s case (supra), Abbott, F.J. delivering the judgment of the Federal Supreme Court in that case stated at pages 73 – 74 of the report thus:
“We are of opinion that, before deciding to order a retrial, this court must be satisfied (a) 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 not rendered a nullity and on the other hand this court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11(1) of the Ordinance; (b) that, leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) 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; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
And after laying the above principles, the Federal Supreme Court per Abott, F.J. added the following salutary warning:
“We have considered the cases cited by Mr. Lloyd, but have been unable to extract from them any guiding principles. We have therefore (and as this is one of the first cases in which the exercise of the power to order a retrial has been argued in this court) endeavoured to formulate the principles on which this court should act in considering the exercise of that power. In formulating these principles we do not regard ourselves as deciding any question of law, or as doing more than to lay down the lines on which we propose to exercise a discretionary power. It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles, or to modify those we have formulated in this judgment. We wish to make it clear that the court will be free to do this without infringing the doctrine of judicial precedent.”
In Adeoye V. State (1999) 6 N.W.L.R. (pt. 605) 74, where this Court had to decide whether or not to order the retrial of the appellant having concluded that his trial was a nullity, Ogundare, JSC, in his leading judgment, after referring to the principles in Abodundun (supra) set out above, also referred to the Privy Council case of Dennis Reid V. Queen (1979) 2 W.L.R. 221, 226, from which excerpts from the judgment of Lord Diplock were quoted as follows: –
“Question (4) is general in its terms and asks for a statement of the principles which should apply in considering whether or not a new trial should be ordered. Their Lordships would be very loath to embark upon a catalogue of factors which may be present in particular cases and, where they are, will call for consideration in determining whether upon the quashing of a conviction the interests of justice do require that a new trial be held. The danger of such a catalogue is that, despite all warnings, it may come to be treated as exhaustive or the order in which the various factors are listed may come to be regarded as indicative of the comparative weight to be attached to them; whereas there may be factors which in particular circumstances of some future cases might be decisive but which their Lordships have not now the prescience to foresee, while the relative weight to be attached to each one of the several factors, which are likely to be relevant in the common run of cases may vary widely from case to case according to its particular circumstances.”
And he continued thus: –
“Their Lordships have already indicated in disposing of the instant appeal that the interest of justice that is served by the power to order a new trial is the interest of the public in Jamaica that those persons who are guilty of serious crimes should be brought to justice and not to escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury. Save in circumstances so exceptional that their Lordships cannot readily envisage them it ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant, at the other extreme, where the evidence against the defendant at the trial was so strong that any reasonable jury if properly directed would have convicted the defendant, prima facie the more appropriate course is to apply the proviso to section 14 (1) and dismiss the appeal instead of incurring the expense and inconvenience to call witness and jurors which would be involved in another trial.”
His Lordship continued: –
“In cases which fall between these two extremes there may be many factors deserving of consideration, some operating against and some in favour of the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies upon the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if this were so, it would be a powerful factor against ordering a new trial.”
“The strength of the case presented by the prosecution at the previous trial is always one of the factors to be taken into consideration. Except in the two extreme cases that have been referred to, the weight to be attached to this factor may vary widely from case to case according to the nature of the crime, the particular circumstances in which it was committed and the current state of public opinion in Jamaica. On the one hand there may well be cases where despite a new certainty that upon a second trial the defendant would be convicted the countervailing reasons are strong enough to justify refraining from that course. On the other hand it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that upon a fresh trial an acquittal is on balance more likely than a conviction.
‘It is in the interest of the public, the complainant, and the (defendant) himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.’
“This was said by the full Court of Hong Kong when ordering a new trial in Ng Yuk Kin V. The Crown (1955) 39 H.K.L.R. 49, 60. That was a case of rape, but in their Lordships view it states a consideration that may be of wider application than to that crime alone”.
The warning given by Privy Council in Reid’s case carefully read, do not differ from what Abott, F.J. said therein in the Abodundu case (supra). In the instant case, the above principles will no doubt be the focus in any determination of whether a retrial should be ordered or not. In doing so, it is necessary to advert to what facts there are in the case to bring the case within the principles adumbrated above. It is common ground between the parties that the appellant was charged for very serious offences that clearly amount to breaches of trust and stealing the property of his employers. And it is not also in dispute that the respondent was purportedly tried in absentia by the General Court Martial. This is a procedure unknown to our procedural law. It is obviously a negation of fair trial. A trial in the absence of the accused person is a sham. As if that was not bad enough, the Court relied upon evidence which were mainly hearsay. This arose from the fact that the General Court Martial, acting erroneously under S.34(1) of the Evidence Act permitted the prosecutors to tender the copies of the proceedings of the earlier trial of other accused persons, as evidence during the trial, and upon which the respondent was convicted and sentenced.
It is manifest from what I have said above that the respondent has not been tried in any shape or form for the offences for which he was charged and convicted. It follows that this is a case in which the respondent ought to be retried as the purported trial of the respondent was due to the blunder of the trial Court in allowing his trial to proceed under the circumstances described above.
It follows that the Court below having held that the trial of the respondent was a nullity, was wrong to have ordered that the respondent be discharged and acquitted. That order is hereby set aside. The purported trial of the respondent by the General Court Martial is hereby declared as a nullity, and the conviction and orders made thereon are hereby set aside. In its place, the respondent is hereby ordered to be retried before the appropriate court for all the offences for which he was charged before the General Court Martial.
SC. 217/2002
