Federal Republic of Nigeria V. Alhaji Attahiru Dalhatu Bafarawa & Ors (2016)
LawGlobal-Hub Lead Judgment Report
TUNDE OYEBANJI AWOTOYE, J.C.A.
This is the judgment in respect of the appeal of the appellant filed on 30/12/2014 against the decision of Hon. Justice Bello Abbas of High Court of Justice Sokoto in SS/M213/2014 delivered on 5/11/2014.
On 10/9/2014, the appellant who was the complainant/applicant at the lower Court filed a motion on notice praying as follows:-
“An order granting leave to the complainant/applicant to file further proof of evidence of witnesses in case no. SS/33C/2009 pending before this Honorable Court in terms of the bundle documents numbered as pages 1,170-1,206 herewith attached and marked as Exhibit A.
An order granting leave to the complainant/applicant to file further list of witnesses intended to be called by the complainant/applicant in case no. SS/33/2009 pending before this Honorable Court in terms of EXHIBIT “B” numbered as page 1,207 herewith attached.
An order of this Honorable Court deeming the further proof of evidence as well as the further list of witnesses intended to be called by the complainant/applicant in case No SS/33C/2009 herewith attached and marked as EXHIBITS “A” and “B” respectively as having been duly filed and served.”
The reasons for the application are stated paragraph 4 of the supporting affidavit. It reads
a. That in the course of interviewing witnesses in the said case, he discover that some other vital documents connected with this case as well as the list of some other vital witnesses have not been attached to proof the evidence already filed before this Court.
b. That the omission to annex the said vital documents and the lists of the said other witnesses to the said proof of evidence already filed before this Court is as a result of his inadvertence or oversight.
c. That the said further proof of evidence contained on pages 1,170-1,206 of the bundles of the documents herewith attached and collectively marked as EXHIBIT “A”.
d. That the said further list of witnesses proposed to be called by the complainant/applicant is contained on page 1,207 of the document herewith attached and marked as EXHIBIT “B”.
e. That he verily believes that the accused persons/respondent would in no way be prejudiced if this application is granted mores so as the complainant/applicant is yet to close its case with the accused persons/respondents would be afforded ample opportunities to cross-examine on the said documents as well as the said witnesses to be called by the complainant/applicant.”
The Respondent opposed the application.
The learned trial Judge after hearing the parties held inter alia
“Having therefore considered the entire legal submissions of the counsel for and against the grant of this application and further considered the entire affidavit evidence placed at the Court’s disposal by the parties and take into account the relevant authorities cited by the counsel and in view of the high premium attached to speedy disposal of criminal cases, when the whole world is fastly adopting a more progressive and speedier methods (sic) of resolving legal disputes, it is the finding of this Court that this application lacks merit and same is therefore refused.”
Dissatisfied with the above decision, the appellant through his counsel Chief J. E. Ochidi challenged the decision on 4 grounds.
The 4 grounds of appeal (excluding the particulars) are;
“Ground One
The Court below erred in law when it applied the provisions of Sections 36 (6) (a)-(e) of the Constitution of Federal Republic of Nigeria 1999 (as amended) and refused to grant leave to the appellant to file further proof of evidence and list additional witnesses to be called in the substantive trial in case No. SS/33C/2009.
Ground Two
The Court below did not exercise its discretion judicially and judiciously when it held in its ruling thus:-
“Having therefore considered the entire legal submissions of the counsel for and against the grant of this application and further considered the entire affidavit evidence placed at the Court’s disposal by the parties and take into account the relevant authorities cited by the counsel and in view of the
high premium attached to speedy disposal of criminal cases, when the whole world is fastly adopting a more progressive and speedier methods (sic) of resolving legal disputes, it is the finding of this Court that this application lacks merit and same is therefore refused.”
Ground Three
The Court below erred in law when it held in its ruling thus:-
“I refer to paragraphs 6 and 7 of the 2nd accused/ respondent’s counter affidavit as having being admitted by the applicant on the fact that the facts and the documents have all along been available and known to the applicant and its counsel.”
And used same as a basis to dismiss the said application of the applicant.
Ground Four
The Court below erred in law when it applied the provisions of Paragraph 4 (c) of the Sokoto State High Court Practice Direction 2013 to dismiss the application of the appellant for leave to file further proof of evidence and additional list of witnesses.”
The record of appeal was transmitted on 4/1/2015 but deemed transmitted on 1/2/2015. Parties filed and exchanged briefs of argument after transmission of record of appeal.
The appellant’s brief of argument was filed on 12/2/2016. The brief was prepared by Chief J. E. Ochidi, appellant’s counsel. Learned appellants counsel formulated one issue for determination to wit:-
“Whether the Court below occasioned a miscarriage of justice on the appellant when it refused to allow the appellant (prosecution) to file and serve additional proof of evidence of witnesses and additional list of witnesses intended to be called by the prosecution in proof of its case against the respondent even at the time the appellant was yet to close its case against the respondents.”
Learned counsel for the appellant submitted that there was no basis in law for the Court below to have used undue delay which the Court conceded was attributable to both parties to punish the appellant by refusing the applicant application. He submitted that the refusal was in breach of Section 36 (4) of the 1999 Constitution. He submitted that Section 34 (4) of the Constitution was for both parties.
He cited OSAYOMA v. STATE (2006) ALL FWLR (Pt. 342) 1577 at 1579; ABUBAKAR V YAR’ADUA (2008) ALL FWLR (Pt. 404) 1409 AT 1442.
Learned counsel submitted that the application was refused at the stage of the proceedings when the appellant was yet to close its case against the respondents in the substantive trial. He added that the additional witnesses sought to be called were vital witnesses. Learned counsel submitted that the application for leave to file additional proof of evidence and additional list of witnesses was not an application that came under the purview of the provisions of Paragraph 4 (a) of the said Practice Direction.
He contended further that it was settled law that mistakes or inadvertence of counsel could not be visited on litigant He cited IROEGBU v. OKWORDU (1990) 6NWLR (Pt. 159) at 649 and UDUMA v. ARUNSI (2011) ALL FWLR (Pt. 560) 1290 at 1251.
He posited also that the application before the Court below was not an application praying for the re-opening of a closed case for the prosecution for the purpose of adducing additional or fresh evidence.
Still in argument, learned counsel submitted that it was not the function of the trial Court to limit the number of witnesses to be called by the prosecution as the prosecution was free to call any number of witnesses it desired to prove its case as it did not have to call the host witnesses listed in the proof of evidence. He relied on MAREMOR v. STATE (2014) ALL FWLR (Pt. 736) 406 at 436.
He finally urged the Court to resolve the sole issue in favour of the appellant.
The brief of 1st, 4th and 6th Respondents was settled by Lateef O. Fagbemi SAN.
Learned senior counsel also formulated one sole issue for determination viz:-
“Whether in view of the facts and circumstances placed before it the trial Court was not right in exercising its discretion in favour of the 1st, 4th and 6th Respondents by refusing the appellants application.”
On right to fair hearing, Learned Senior Counsel submitted that the right to fair hearing of appellant was not breached by the refusal of his application as appellant did not show how it was breached. He posited that the appellant did not furnish sufficient materials in proof of the alleged breach.
He cited ADEYEMI v. STATE (2011) 5 NWLR (Pt. 1239) 1 at 40 and IMASUAN v. UNIVERSITY OF BENIN (2010) 3 NWLR (Pt. 1182) at 6/7.
Learned Senior Counsel further submitted that the High Court of Sokoto State Practice Direction 2013 did not give the learned trial Judge power to grant the application. He referred to Paragraph 4 (a) of the Practice Direction. He contended that the rule governing the practice and procedure was the rule in force at the time of trial. He cited OWARA v. NWABUEZE (2013) 16 NWLR (Pt. 1379) at 21; OWATA v. ANYIGOR (1993) 2 NWLR (Pt. 276) 380 and OLAORE v. OKE (1987) 4 NWLR (Pt. 67) 76.
Finally, Learned Respondent’s Senior Counsel submitted that the appellant failed to provide sufficient materials for the Court to exercise its discretion in favour of the appellant.
He urged the Court to dismiss the appeal.
I have carefully considered the submissions of the learned counsel for the parties as well as the contents of the record of appeal.
It is to be noted that the 9th, 10th and 11th Respondents attempted to file their respective briefs. They however failed to file their respective briefs within time allocated by the Rules of Court. Their respective briefs shall therefore be discountenanced.
I have gone through the issues as formulated by the learned counsel on both sides. I find the sole issue as formulated by the learned Senior Counsel for the 1st, 4th and 6th Respondents apt and wide enough to for the just determination of this appeal.
I hereby reproduce the sole issue for ease of reference
“WHETHER IN VIEW OF THE FACTS AND CIRCUMSTANCES PLACED BEFORE IT, THE TRIAL COURT WAS NOT RIGHT IN EXERCISING ITS DISCRETION IN FAVOUR OF THE 1ST, 4TH AND 6TH RESPONDENTS BY REFUSING THE APPELLANT’S APPLICATION.”
It is clear that this appeal is challenging the exercise of discretion of the learned trial Judge. An exercise of discretion is a privilege “to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a particular case guided by the sprit and principles of law” per Mohammed J.S.C. In THE OWNERS OF M. V. LUPEX v. NIGERIA OVERSEAS CHARTERING AND SHIPPING LIMITED (2005) 15 NWLR (Pt. 844) 469.
An appeal against the exercise of discretion can be entertained where such exercise by the Court below is not according to common sense and according to justice. It will also be entertained if there is any miscarriage of justice in the exercise of the discretion. See IGWE v. KALU (1993) 4 NWLR (Pt. 285). Such exercise of discretion must have been judicially exercised (not arbitrarily or based on extraneous or irrelevant materials) before an appellate Court can set it aside. See ADEJUMO & ORS v. AJANI YUSUF AYANTEGBE (1989) 3NWLR (Pt. 110) P. 417 at 438.
I shall view this appeal in the above light.
Is the exercise of discretion by the Court below in its discretion delivered on 5/11/2014, judicial, when it refused to grant the application for leave to file proof of evidence of witnesses, further list of witnesses and deeming the further proof of evidence and further list of witnesses intended to be called by the applicant as having been duly filed and served?
The following points are beyond contention from the ruling and proceeding of the Court below
1) The appellant had as at the time of the application not closed its case at the lower Court.
2) The application of the applicant/appellant was not seeking leave to adduce additional evidence, as opposed to seeking leave to file further proof of evidence of witnesses, all of whom the prosecution did not have to call to give evidence.
See ALI & ANOR v. THE STATE (1988) 1 S.C. 35 where Oputa, JSC, had this to say
“As far back as 1848 in the case of REG v. EDWARDS UNDERWOOD & EDWARDS (1848) 3 COX C.C. 82 the law has been that the counsel for the prosecution is not bound to call all the witnesses whose names appear at the back of the bill of indictment. In 1941 the West African Court of Court in R v. GEORGE KUREE (1941) 7 WACA 175 at p. 177 noted that the duty of the prosecution is to place before the Court all available and relevant evidence.”
3) The learned trial Judge had not issued any orders or directive as to timelines for hearing of cases for the parties, incorporating.
i. The number of witnesses to be called by each party.
ii. The time required by each party to present its case and defend the case against it.
iii. Specific days and time when the case will be heard.
iv. Expected duration of the trial including when judgment will be delivered.
v. Such orders and directives that would facilitate an expeditious determination of the matter.
See paragraph 4 High Court Practice Direction, which reads thus;
“PRE-HEARING PROTOCOLS
a. In a criminal trial where leave is granted and after arraignment, cases shall be set down for pre-trial by the Court within fourteen (14) days of the arraignment. The Court shall fix and communicate to the parties a date for a pretrial hearing where all issues of preliminary objections, admissible of evidence and any other questions of law relating to the case will be taken and dispensed with;
b. The Court shall within fourteen (14) days of the last pre-trial hearing (where more than one is held) deliver a composite ruling on all application made during pre-hearing conferences;
c. No application, which should have been taken at the pre hearing stage, shall be entertained during the hearing except where the Court is of the opinion that the facts and circumstances of the application are such that did not exist at the time of the pre-trial hearing.
Provided that, all preliminary objections challenging the jurisdiction of a Court to hear a case, if not raised at the pre-trial hearings, may form part of the parties’ final address;
d. Where there is a preliminary objection challenging the jurisdiction of the Court to hear a case before it, the Court shall ensure that the ruling is delivered on time;
e. Similarly, at the close of the pleadings in civil cases, either of the parties or the Court shall within seven (7) days request a date for pre-trial hearing and the case shall not proceed to hearing until such a pre-trial hearing has been held;
f. Judges should be encouraged to use effective the pre-trial conference medium to reduce the length of the trial;
g. At the end of the pre-trial hearing the Court may issue orders and directives which may include time lines for hearing, incorporating;
i. The number of witnesses to be called by each party;
ii. The time required by each party to present its case and defend the case against it;
iii. Specific days and time when the case will be heard;
iv. Expected duration of the trial including when the judgment will be delivered;
v. And such orders and directives that in the opinion of the Court would facilitate an expeditious determination of the matter.”
4) It is true that the trial at the lower Court was 5 years old. However the delay was caused by both parties as a result of interlocutory applications filed by both parties.
5) The effect of the ruling of the lower Court was that it forcibly cut down the number of the witnesses from which the prosecution could pick its witnesses to prove its case and also prevented the prosecution from bringing before the lower Court the relevant materials for justice to be done in the case.
6) The granting of the application and the issuance of the timeline for the prosecution as well as the defence to conclude its case would have furthered the end of justice and speeded up the conclusion of the case at the Court.
It is pertinent to state that the provision of High Court Practice Direction 2013 applies to the case on appeal Mutatis Mutandis (See Paragraph 2 (b) of the Practice Direction). Since trial at the lower Court commenced before the coming into force of High Court Practice Direction 2013 and the lower Court could not have reverted back to pre-hearing protocols under Paragraph 4 of the Direction, the learned trial Judge ought to have complied with Paragraph 4 (g) of the Direction which his Lordship could still have done in spite of having commenced trial before the coming into effect of the Direction. If the prosecution had been given a time line within which to conclude its case, it would not have been necessary for the lower Court to prevent the prosecution from adding to its list of witnesses and list of documents since it would still be within the prosecution’s discretion to pick and choose which of them to call as witnesses within the stipulated time given to it to conclude the prosecution case. This is in line with Paragraph 4 (g) of the Direction. Paragraph 4 (g) of the Practice Direction is reproduced hereunder for ease of reference:
“At the end of the pre-trial hearing the Court may issue orders and directives which may include time lines for hearing, incorporating;
i. The number of witnesses to be called by each party;
ii. The time required by each party to present its case and defend the case against it;
iii. Specific days and time when the case will be heard;
iv. Expected duration of the trial including when the judgment will be delivered;
v. And such orders and directives that in the opinion of the Court would facilitate an expeditious determination of the matter.”
The reason given for the delay in bringing the application before the lower Court is contained in paragraph 4 of the affidavit in support of the motion on notice thus;
a. That in the course of interviewing witnesses in the said case, he discover that some other vital documents connected with this case as well as the list of some other vital witnesses have not been attached to proof the evidence already filed before this Court.
b. That the omission to annex the said vital documents and the lists of the said other witnesses to the said proof of evidence already filed before this Court is as a result of his inadvertence or oversight.
c. That the said further proof of evidence contained on pages 1,170-1,206 of the bundles of the documents herewith attached and collectively marked as EXHIBIT “A”.
d. That the said further list of witnesses proposed to be called by the complainant/applicant is contained on page 1,207 of the document herewith attached and marked as EXHIBIT “B”.
e. That he verily believes that the accused persons/respondent would in no way be prejudiced if this application is granted mores so as the complainant/applicant is yet to close its case with the accused persons/respondents would be afforded ample opportunities to cross-examine on the said documents as well as the said witnesses to be called by the complainant/applicant.”
In my respectful view, the reason given for the delay by learned counsel for the prosecution is given more fortification by Learned Senior Counsel who described him as “a very careful and diligent counsel.” This means it is not in doubt that the learned counsel for the prosecution is not given to tardiness or carelessness in his professional duty. If a proven diligent and careful counsel omits or delays to file an application before the Court which he ordinarily should have filed and he attributes it to his mistake, should the reason not be accepted in the interest of justice? Once it is clear that the delay of the trial by 5 years was not solely because of the tardiness of prosecution or its counsel, the prosecution has not closed its case, and the application of the prosecution if granted would in no way further delay the trial as listing of witnesses for prosecution is not tantamount to calling them in evidence and the prosecution had not been given a time line within which it should conclude its case (which the prosecution has breached), then, in my view, refusing the prosecution’s application as the lower Court did amount to quillotining the prosecution’s case.
Learned Senior Counsel for the Respondents gave reasons for opposing the application
1) He submitted that the appellant had earlier brought a similar application before the lower Court which was granted but not utilized as the witnesses on the list were not called to give evidence.
2) Learned Senior Counsel further added that some of the witnesses on the earlier list are on the present list in respect of which leave is being sought.
3) Respondent’s counsel contended further that the prosecution had shown tardiness by calling only four witnesses within the 5 years of the trial out of the listed 27 witnesses.
In my respectful view the first and second reasons above are further proof of genuinity of the mistake on the part of the prosecution. The third reason suggest that the delay in the trial was caused by the prosecution. In paragraph 4 (c-i) of the further affidavit in support of the motion on notice filed at the lower Court (on page 57-58 of the record of appeal) the applicant averred thus;
“c. That contrary to the position of the 2nd accused/respondent, it was the accused person/respondent that caused the delay in the hearing of the substantive Case No SS/33C/2009.
d. that after the charge was filed against the accused person/respondent in December 2009, they filed a motion before this Court to quash the said charge as a result, the complainant/applicant could not open its case against the accused person/respondents.
e. That it was only on 29th September 2011 that this Honorable Court dismissed the said motion of the accused person/respondents to quash the said charge.
f. That after the said motion to quash the charge was dismissed by this Court on 29th September 2011, the accused person/respondents filed a Motion on Notice No. SS/M.303/2012 before this Court praying for an order to stay proceeding in Case No. SS/33C/2009 pending the hearing of the appeal they filed before the Court of Appeal challenging the decision of this Court by which it refused to quash the said charge against the accused person/respondents. A copy of the said motion on notice (excluding the annexures thereto) is herewith attached and marked as Exhibit “C”.
g. That the Complainant/Applicant could not proceed with the hearing of the substantive case because of the pendency of the said motion for stay of proceedings.
h. That it was only on the 22nd day of January 2013 that the said motion No SS/M.303/2012 was struck out by this Honorable Court thereby paving way for the Complainant/Applicant to call its witnesses in the substantive case.
i. That since then till date, the Complainant/Applicant has been diligent in the prosecution of the substantive case.”
The learned trial Judge considered the above and agreed that there were several interlocutory applications during the trial. His Lordship however held that there was undue delay.
If the prosecution was yet close its case and its application was not to adduce further evidence but merely to add a list of witnesses and documents which it was not bound to call as witnesses, in my view the delay was not as monstrous as being pointed. It did not prejudice the case of the accused persons. It also did not prolong the hearing of the case once time for each of the parties to conclude their respective cases is fixed by the Court. The accused persons (Respondents) in my view were in no way prejudiced by the application of the appellant.
I have deeply considered the case of OKAYE v. ANYAWOKE (2011) 28 WRN 156 at 160 and ADIGWE v. F.R.N. (2015) 18 NWLR (Pt. 1490) 105 at 136, cited by Learned Senior Counsel for the Respondents. The cases, in my respectful view do not seem to have jettisoned mistake of counsel as a good reason for overlooking delay in deserving cases except where the litigant himself is a party to the commission of the sin.
AMADI v. ACHO (2008) 12 NWLR (Pt. 939) 386 at 405; FAMFA OIL v. A.G. FEDERATION & ANOR (2003) 8 NWLR (Pt. 852) 453; EDE & ANOR v. MBA (2011) 18 NWLR (Pt. 1278) 236; THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD & ORS v. CHIEF AGBARA & ORS (2015) LPERL SC. 693/2013; ABAH v. MONDAY & ORS (2015) LPELR SC.3/2014. See Mistake of counsel, it is trite law, cannot be visited on his counsel. According to Okoro, JSC in ABAH v. MONDAY & ORS (supra)
“It is has been held in quite a number of cases in this Court that a Court should not punish a litigant based on the mistake or inadvertence of his counsel.”
Truncating the prosecution’s case by the lower Court as it has done, will not speed up the trial, but will certainly not be in the interest of justice. However, issuing a time line for the parties and enforcing same will. I do not think the learned trial judge, with due respect, exercised his discretion in the application fairly judicially, and in the interest of justice. I resolve the sole in favour of the appellant. This appeal has merit. It is hereby allowed. The decision of the lower Court refusing the application of the prosecutor/appellant delivered on 5/11/2014 set aside.
i. I hereby grant leave to the application/appellant to file additional and additional of witnesses to case no. SS/33C/2009 pending before the below.
ii. The learned trial Judge is to invoke the provisions of Paragraph 4(g) of the 2013, High Court Practice Direction to fix time lines for both the prosecution and the accused persons to conclude their respective cases, thereby speeding persons to conclude their respective case, thereby speeding up the said trial.
Other Citations: (2016)LCN/8675(CA)
