Daniel Adeoye V. State (1999)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C.
The appellant was charged with the murder of one Gabriel Nwosu. He was arraigned before the High Court of Lagos State before Oduneye. J. on 17th February 1994 when his plea was taken after the charge had been read over to him. He pleaded not guilty to the charge. The prosecution, on that date; called two witnesses after whose evidence the trial was adjourned to 10/3/94. On 10/3/94, although the appellant (who was all along in prison custody), was not produced in court. The learned trial Judge, notwithstanding this fact which he recorded in the record of proceedings for the day, nevertheless proceeded with the trial in the absence of the appellant. The prosecution called two further witnesses one of whom (PW3) was a vital eye witness. At the end of the testimony of these two witnesses further trial was adjourned to 7/4/94. At the conclusion of trial, and after addresses by counsel for the prosecution and the defence, the learned trial Judge convicted the appellant of murder and sentenced him to death.
He appealed unsuccessfully to the court below. He has now further appealed to this court upon 7 original grounds of appeal. With leave of this court an additional ground of appeal was added. It reads:
“8. The learned Justices of the Court of Appeal erred in law in hearing and determining the appeal herein when the judgment being appealed against was a nullity.”
The particulars to the ground are omitted.
The appellant, through his counsel, Ademola Akinrele Esqr., filed his brief of argument on 12/12/97. The respondent failed to file its own brief. The appeal was set down for hearing on 18/10/98. In view of the issue raised in the appeal and based on ground 8 above, this court ordered that the original record of proceedings in the trial Judge’s handwriting he produced on or before 18/12/98 and the hearing of the appeal was adjourned to 4/2/99. Before the latter date, the respondent had filed a motion for extension of time to file respondent’s brief and to deem the brief already filed and served duly filed and served. On the application coming before the court on 4/2/99 and not being opposed by Mr. Akinrele, it was granted as prayed.
In the appellant’s brief the following issues are set down as calling for determination in this appeal, to wit:
“Issue I
Whether the courts below were right in law to have failed or refused to consider the defences raised by the appellant on the ground that the said defences were inconsistent and contradictory.
Issue II
Whether the inconsistency in the evidence of the PW2 and PW3 on the one hand and PW7 on the other hand was de minimis or whether it was material contradiction and if it is material, whether the conviction of the appellant is sustainable.
Issue III
Whether in the circumstances of the case, Hajia Rabiu Mohammed was a material witness and as such, whether the refusal and or omission of the prosecution to call her or tender her written statement raises the presumption in section 149 (d) of the Evidence Act and therefore fatal to the case of prosecution.
Issue IV
Whether the proceedings and judgment of the trial court and consequently the proceedings at the Court of Appeal was not unconstitutional, illegal and therefore a nullity and if the proceedings of the courts below are a nullity, what is the proper order to make in the circumstances.
The respondent adopted the above issues.
As issue IV calls into question the validity of the trial of the appellant I intend to consider it first.
The trial of the appellant had commenced on 17th February 1994 when two witnesses gave evidence for the prosecution. The appellant was in court throughout the proceedings that day. After the second witness had concluded her evidence further trial was adjourned to 10th March 1994. Because of the importance of what happened to the issue IV under consideration. I will set out part of the proceedings for that day. The record reads:
“Ikeja: Thursday the 10th March. 1994
Before the Hon. Justice J. A. Oduneye ” Judge
Suit No. ID/3C/93
Between
The State Complaint (sic)
v.
D. Adeoye Accused
Accused not produced
F. E. Awolalu for the State
P. O. Ige for the accused person
3rd plaintiff witness: Sworn on the Holy Bible
and states in English language.”
(Italics is mine for emphasis)
Two witnesses gave evidence that day. As we were not certain of the correctness of the record before us, we called for the original record in the trial Judge’s own handwriting. There was no difference. And both counsel confirmed this.
It is Mr. Akinrele’s submission that as two witnesses testified that day in the absence of the appellant, the trial offended section 210 of the Criminal Procedure Act. Cap. 80 Laws of the Federation of Nigeria 1990 and was consequently a nullity. He urged us to declare the trial void.
The learned Director of Public Prosecutions of Lagos State. Mrs. Mofunanya who appeared for the respondent at first maintained that the appellant was present in court when the PW3 and PW4 gave evidence on 10/3/94. When shown the original record of proceedings for the day, she conceded that there was a defect in the proceedings. No doubt, the learned DPP was in some difficulty over the development. The only way she could overcome the difficulty was to challenge satisfactorily the correctness of the trial court’s record for the day. As she had no materials with which to embark on such an exercise she threw in the towel.
It is not part of our criminal jurisprudence to try a defendant in absentia. Section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in sections 100 and 223 of the Act.There are similar provisions in the State laws. As this case was tried in the High Court of Lagos State it is the Criminal Procedure Law of that State that applies, Now section 210 of that law provides:
“210. Every accused person shall, subject to the provisions of section 100 and of subsection (2) of section 223 of this Act. be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”
Section 100(1) of the Law, which provides:
“100.(1) Whenever a magistrate issues a summons in respect of any offence to which there is annexed a penalty not exceeding one hundred naira or imprisonment not exceeding six months or both such penalty and imprisonment the magistrate may, on the application of the accused and if he sees reason to do so and shall, on such application when the offence with which the accused is charged is punishable only by a penalty not exceeding one hundred naira. dispense with the personal attendance of the accused provided that the accused pleads guilty in writing or appears and so pleads by a legal practitioner.”
and section 223( 1) and (2) which read –
“223. (1) When a Judge holding a trial or a magistrate holding a trial or an inquiry has reason to suspect that the accused is of unsound mind and consequently incapable of making his defence the Judge, jury or magistrate, as the case may be, shall in the first instance investigate the fact of such unsoundness of mind,
(2) Such investigation may be held in the absence of the accused person if the court is satisfied that owing to the state of the accused’s mind if would he in the interests of the safety of the accused or of other persons or in the interests of public decency that he should be absent. …..
do not apply in the case on hand, Section 210 being mandatory. a breach of it renders the trial a nullity. It is not suggested that the appellant misconducted himself by interrupting the proceedings or otherwise on 10/3/94; he was just not produced in court. It must be borne in mind that he was, at all time relevant to the trial in prison custody. In Eyorokoromo v. The State (1979) 6-9 S.C), 9: (1979) NSCC 61, 65, this court recognised the circumstances under which a trial may be a nullity. Bello. J.S.C., (as he then was) delivering the judgment of the court, observed:
“It is pertinent, however, to point out that a trial may be a nullity on one of the following grounds. 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”.
The case on hand fails under the third category above.
Having declared the trial of the appellant a nullity, it remains to determine what consequential orders to make Mr. Akinrele, after discussing Abodunde v. The Queen 4 FSC 70: (1959) SCNLR 162, urged us to acquit the appellant. It is his argument that the learned trial Judge did not effectively consider the merit of the case put forward by the appellant in that, according to learned counsel, the Judge peremptorily rejected the defcnce on the principle of R. v. Ukpong (1961) All NLR 25: (1961): SCNLR 53 which, learned counsel argued, was wrongly applied. He urged us to take into account the length of time the appellant had been incarcerated, the difficulty/impossibility of procuring vital witnesses and the age of the appellant.
Mrs. Mofunanya, for the respondent argued forceful1y that notwithstanding the defect in the proceedings the appeal be dismissed and the conviction and sentence affirmed.
This court dealt exhaustively with this issue in Eyorokoromo v. The State (supra). There Bello, J.S.C. after a discussion on 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, discerned the principles (1) that a retrial may not generally be granted where there is no valid charge or information and (2) that in the class of cases where, in the course of the trial, the trial Judge committed an error which rendered the trial null, retrial will be ordered unless there is merit in the case. Bello. J.S.C. went on at pages 67-68 of the latter report:
“Now the power of the Court of Appeal to order a retrial in criminal cases is conferred by section 20(2) of the Decree in identical words with section 26(2) of the Supreme Court Act. It follows therefore that the principles in Yesufu Abodunde & others v. The Queen (supra) which are the guiding principles under which this court will order a retrial, are applicable in the Court of Appeal in exercise of their discretion under section 20(2) of the Decree. To exercise that discretion judicially called for the examination by the Court of Appeal of the whole record of proceedings of the trial court to ascertain whether or not the evidence and the circumstances of the case came within those principles.”
What are the principles in Abodunde’s case’ Abbott, F. J. delivering the judgment of the Federal Supreme Court in that said case opined at pages 73-74 of the report:
“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.”
It is pertinent to observe that in arriving at these principles the Federal Supreme Court per Abbott, F. J. had warned:
“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.”
This warning was re-echoed by the Privy Council 20 years later in Dennis Reid v. The Queen (1979) 2 WLR 221, 226 where, in answering question 4 posed before the Council, that is:
“4. What are the principles which should apply in considering whether or not a new trial should be ordered”
The Council, per Lord Diplock, had warned:
“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 lo be regarded as indicative of the comparative weight to be attached to them; whereas there may be factors which in the particular circumstances of some futures case might he decisive but which their Lordships have not now the prescience to foresee, while the relative weight to he 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.”
Lord Diplock, however, attempted to lay down some guidelines when at pages 226-227 he said:
“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 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 he 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.
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 far which the court and jury would be involved in a fresh hearing may also he 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 he 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 but, 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 all 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 guidelines suggested by the Privy Council in Reid’s case an: not too dissimilar from the principles laid down by the Federal Supreme Court in Abodunde.
I now turn to the case on hand. No doubt, the charge against the appellant is a serious one indeed and the evidence was rather strong. It is true that the learned tria1 Judge misapplied the principle in R. v. Ukpong (supra) when he rejected the defence of the appellant for the reason only that his evidence at the trial was at variance with one of his statements to the police. This court had, in Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383, held that this approach was wrong and that R. v. Ukpong only applies (0 the evidence of a witness other than an accused person who is shown to have made a previous statement inconsistent with his evidence at the trial. Whether this misdirection would suffice to vitiate the verdict of guilt entered by the learned trial Judge is another matter. Mr. Akinrele submits it would. Thus, Mr. Akinrele seems to be saying that the case for the prosecution, in the light of this misdirection, lacks merit. I do not think the case is without some merit. If, however, the evidence of the two witnesses – one of whom was a star eyewitness – who testified in the absence of the appellant was excluded, the case for the prosecution would be considerably weakened. I doubt if the learned trial Judge would have convicted without the evidence of these two witnesses, particularly PW3 whose evidence he relied upon considerably in convicting.
I take into consideration that the offence was allegedly committed in 1991 and the appellant has been in prison custody since then. I also take into consideration the fact given in evidence by the prosecution that since the occurrence of the event leading to the death of the deceased, all the tenants living in the appellant’s premises had moved away to unknown places and it may now he difficult to locate them to give evidence.
Bearing all these factors in mind I think the interest of justice demands that I make no order of retrial in this case. Consequently, therefore, I allow this appeal, set aside the conviction and sentence to death passed on the appellant and declare his trial null and void. I, however, do not order that he be retried for the same offence again. I, therefore, discharge and acquit him of the charge of murder preferred against him.
SC.178/1997
