Idara Solomon Ukut V. The State (2016)
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ONYEKACHI AJA OTISI, J.C.A.
This is an appeal against the judgment of the High Court of Akwa Ibom State, Itu Judicial Division, Coram Honourable Justice G. J. Abraham, J., delivered on December 2, 2013 in Charge No. HIT/13C/2013 in which the Appellant was convicted on a two count charge preferred against him and sentenced to fourteen years imprisonment each, with sentence in both counts to run concurrently.
The facts leading to this appeal reveal that on September 13, 2012 at about 7:25am, the complainant, a certain Aniekan Offiong Ukpe, received a threatening message from one Mr. Niceman, demanding for the sum of N1.5 million (One Million Five Hundred Naira) or he, the complainant will lose his life. The message was repeated on September 15, 2012, September 17 , 2012 and September 21, 2012. on September 22, 2012, the complainant was directed to a primary school in Ibiaku Itam in Ifu, where the said ransom money was dropped as directed by the ‘Mr. Niceman’ by voice conversation. The complainant recognized the Appellant’s voice and reported to the Police. The Appellant was arrested on September 23, 2012 at a palm wine and dog-meat bar
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at Urua Ekpa Itu. A search conducted in the house of the Appellant and the sum of N1. 3million (One Million, three Hundred Naira) was recovered. The recovered sum of money was released on bond to the complainant.
The Appellant was subsequently charged with:
i. Threatening the life of one Aniekan Offiong Ukpe, contrary to S. 6 (2) of Akwa lbom State Internal Security and Enforcement Law 2009.
ii. Demanding money by written threats to one Aniekan Offiong Ukpe contrary to S.42 of the Criminal Code Cap 38 Vol. II, Laws of Akwa lbom State 2000. (Page 2 of the Record of Proceedings).
At the trial, the Respondent called two witnesses. The Appellant testified for himself and had no other witness. The Appellant also had no legal representation. He was convicted on both counts and convicted to fourteen years imprisonment on each count. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice and Grounds of Appeal, filed on 27/10/2015, out of time but with leave of Court earlier granted on September 21/9/2015. There were three grounds of appeal.
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The parties exchanged Briefs of Argument. The Appellant’s Brief settled by
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Ndon Umoh, Esq. on29/1012015, was adopted by I.U Idem, Esq. on 25/4/2016. The Respondent’s Brief was settled and adopted by Kingsley Umo, Esq., Chief State Counsel, Ministry of Justice, Akwa Ibom State, on 25/4/2016.
Out of three grounds of appeal, the Appellant formulated three Issues for determination as follows:
i. Whether the Appellant was given fair hearing by the learned trial judge at the lower Court. (Ground 1 of the Notice and Grounds of Appeals).
ii. Whether the learned trial judge had properly evaluated the evidence of the parties especially the Appellant and considered all the issues raised by the Appellant, especially alibi and duress, etc. (Ground 2 of the Notice and Grounds of Appeal).
iii. Whether the prosecution had proved its case beyond reasonable doubt to have justified the learned trial judge giving judgment against the Appellant by sentencing the Appellant to fourteen years imprisonment. (Ground 3 of the Notice and Grounds of Appeal).
The Respondent adopted these issues as formulated by the Appellant for determination. The issues shall now be considered.
Issue No 1
It was contended for the Appellant
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that the Appellant had not been given fair hearing. He had been arrested and detained on 23/9/2012 and arraigned on 2/5/2013. He had no opportunity to reach his relatives or have access to legal representation throughout trial. He also did not reply to the address of the prosecution to the trial Court at the end of proceedings. It was submitted that a trial in which one party’s counsel was given opportunity to address Court and the other had no such opportunity cannot be said to be fair. Reliance was placed on Agbogu v Adiche (2003) 2 NWLR (PT 805) 509; Akabogu v Akabogu (2003) 9 NWLR (PT 826) 449 and Okotogbo v State (2004) ALL FWLR (PT 222) 1652.
In reply, it was submitted for the Respondent that every opportunity was given for the Appellant to present his defence in line with the provisions of Section 36(6)(b) of the 1999 Constitution, as amended. That the Appellant had been asked if he had a lawyer but he said no and also responded that he would conduct his defence by himself. The record of proceedings would show that the Appellant had contact with his family. He had testified that he was released on bail after his father had paid N200, 000.00 (Two
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Hundred Thousand Naira) to the Police to add to the money recovered from his apartment (N1 3 million), bringing it to a total of N1.5 million (One Million Five Hundred Naira). It was submitted that the record of proceedings would show that the Appellant deliberately did not want anyone to testify on his behalf. On the issue of address, learned Counsel for the Respondent conceded that a party must not be denied the right to address Court, where that right existed. But submitted that the Appellant had chosen to conduct his defence without the services of a lawyer. There was no miscarriage of justice occasioned by the failure to address Court by himself. The facts of the case revealed that the Appellant was accorded every opportunity to present his defence. There had been fair hearing. Fair hearing is not an abstract term which a party can dangle in the judicial process but one which is real and which must be considered in the light of the facts and circumstances of the case. Learned Counsel for the Respondent relied on Ariori v Elemo (1983) 1 SCNLR 40; Ogunsanya v The State (2011) LPELR- 2349(SC), inter alia.
?The right to fair hearing is a fundamental right
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constitutionally guaranteed by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Basic elements of fair hearing include that: the Court shall hear both sides in all material issues in the case before reaching a decision which may be prejudicial to any party in the case; and having regard to all 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; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (PT 98) 419; Agbiti v The Nigerian Navy (2011) LPELR-2944(SC). Each party has a right to be heard at every material stage of the proceedings; Agbahomovo v. Eduyegbe (1999) 3 NWLR (PT 594) 170. In Baba v. Nigerian Civil Aviation (1991) 7 SCNJ 1,(199I) 5 NWLR (PT 192) 388, the Supreme Court, per Nnaemeka Agu, JSC emphasized the imperative need to observe fair hearing once the rights of a person would be affected thus:
“where the body, whether Judicial, quasi-Judicial, administrative or executive in inception, acts Judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him
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guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of Section 33(1) of the Constitution of 1979. That indeed is the essence of fair hearing as a constitutional right. In such cases the hearing body must be seen to have observed all the implications and attributes of fair hearing…”
In criminal trials, there must be compliance with the provisions of the 1999 Constitution, as amended, and all other statutes that provide for the conduct of criminal trials in order to ensure a fair trial of the accused person; Okoro v State (2012) LPELR-7846(SC); Okoye v Commissioner of Police (2015) LPELR-24675 (SC).
It was rightly submitted for the Respondent that fair hearing is not an abstract term which a party can dangle in the judicial process but one which is real and which must be considered in the light of the facts and circumstances of the case; Magaii v The Nigerian Army (2008) LPELR-1814(SC), (2008) 34 NSCQR (Pt 1) 108; Olowu v The Nigerian Navy (2011) LPELR-3127(SC).
The burden is on the party alleging breach of fair hearing in a case to prove the breach; and he must do so in
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the light of the facts of the case. Only the facts of the case will show non-compliance with the principle of fair hearing; Maikyo v ltodo (2007) 5 MJSC 60; Bill Construction Ltd v Imani Ltd (2007) 3 MJSC 217.
The Record of Appeal is the process to look to in determining if there has been fair hearing. A record of appeal is presumed to be correct and is binding on the Court and on the parties The appellate Court relies on the record of appeal and cannot go outside the said record of appeal in resolving the issues arising for determination in the appeal; Gonzee (Nig) Ltd v. NERDC (2005) 13 NWLR (PT 943) 634 (SC); The State v Babangida John (2013) LPELR-20590(SC). Not even information contained in the Briefs of Argument of the respective parties can be relied on to supply missing information, outside the record of appeal.
Learned Counsel for the Respondent in his Brief in arguing that there was fair hearing accorded the Appellant contended that the Appellant had been asked by the trial Court if he had a lawyer but he said he did not. That he was also asked if he will conduct his defence by himself and he responded that he would do so. The Record of
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Appeal ought to confirm these submissions and information.
At pages 33 and 34 of the Record of Appeal is transcribed the proceedings for May 2,2013 as follows:
PLEA:
The charge has been read and explained to the accused person.
ACCUSED: I understand the charge. I am not guilty to count 1, I am not guilty to count 2.
PW1: Male, adult, Christian, affirms and states in English as follows: …
Section 36(6)(c) of the 1999 Constitution, as amended, provides that
Every person who is charged with a criminal offence shall be entitled to:
(c) defend himself in person or by legal practitioners of his own choice.
In other words, an accused person may elect to conduct his defence personally. That the Appellant unambiguously made the choice to conduct his own defence is not immediately evident from the Record of Appeal. All through the proceedings before the trial Court, including during the proceedings in a trial-within-trial conducted by the learned trial Judge, the Appellant conducted his defence, and no election by him to do so was recorded.?
At the end of hearing, the following proceedings were transcribed at page 52 of the
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Record of Appeal:
The accused is in Court.
Kingsley Umo Esq. for the state.
O.S. Inwang Esq. watches brief for the complainant.
Mr. Umo: we had filed a written address on 30/10/2013. we have filed another one today 11/11/2013. we shall apply that the address of 30/10/2013 be struck out.
COURT: The application is granted. It is hereby ordered that the written address filed by the prosecution on 30/10/2013 be and is hereby struck out.
Mr. umo: We adopt the written address filed on 11/11/2013 as our argument.
COURT: The case is adjourned to 2/12/2013 for Judgment.
There is no indication that the Appellant, who was conducting his defence was served with either the Respondent’s written address filed on 30/10/2013, which was struck out, or with the written address relied upon filed on 1/11/20I3. The fact that a party is conducting his defence personally does not translate to mean that he is not entitled to be served with all processes filed in the case. In Obodo v Olomu (l987) 3 S.C. 43, the Supreme Court, per Belgore, JSC (as he then was) held:
“The addresses, I hold are not directed at the Court alone. The purport of
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the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court. Therefore it is wrong supposition for a trial Court to believe that an address at the close of a party?s case is meant for it alone; the other side, throughout the trial of a case must not be blinded from what his adversary relies upon…The address is undated and not served on the other side i.e. the plaintiff. This is unjust…The trial Judge was in error in the manner he ordered for the written addresses. He was wrong in deciding the case virtually on the written address of the defendant’s counsel which was not served on the plaintiff for his counsel to afford him the opportunity of writing his own address.”
It is the duty of a trial judge to record accurately the proceedings presided over by him. The point has already been made that the Court is bound by the record of appeal. Any questions raised as to whether or not there has been a breach of the constitutional right to fair hearing ought to be resolved by the record of proceedings; Anyanwu v The state (2002) 13 NWLR (PT 783) 107, (2002)
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6 SC (pr II) 173; Federal Republic of Nigeria v Akubeze (2010) 17 NWLR (PT 1223) 525 S.C. Where the learned trial judge fails to comprehensively record all that transpired during the trial, it becomes difficult to resolve questions raised as to whether the party, in this case the Appellant, was accorded fair hearing.
The Record of Appeal in this appeal gives the unfortunate impression that the learned trial Judge was either in a hurry to conclude the trial or simply failed to record fully the proceedings. It is not recorded whether or not the Appellant articulated his decision to conduct his defence personally. It is also not on record that the Appellant was served with the written address of the Respondent. He was entitled to be served with every process filed. He was also not invited to address the trial Court. In the light of these findings, I hold that the Appellant was not accorded fair hearing.
It is trite that where a party is denied fair hearing, the outcome of the entire proceedings would be vitiated and nullified. Fair hearing lies in the procedure followed in arriving at the decision and not in the correctness of the decision; Victino
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Fixed Odds Limited v Ojo (2010) 8 NWLR (PT 1197) 456. A correct decision that was reached through an unfair procedure cannot stand. There will be no alternative to setting aside the proceedings and the decision reached that was tainted by lack of fair hearing; Adebesin v The State (2014) LPELR-22694(SC); Federal Republic of Nigeria v Akubeze (supra),
In consequence, the conviction and sentence of the Appellant by the High Court of Akwa Ibom State, Itu Judicial Division, Coram Honourable Justice G. J. Abraham, J., in the judgment delivered on December 2, 2013 in Charge No. HIT/13C/2013 is hereby set aside.
Although the appeal has succeeded, I have carefully considered the facts of this case against the guiding principles in ordering a retrial, as enunciated in Abodunde & Ors v The Queen (1959) 4 FSC 70, relied upon in lkhane v Commissioner of Police (1977) 6 S.C. 78; Kajubo v The State (1988) LPELR-1646(SC); Umaru v The State (2009) LPELR-3360(SC), and a long line of other cases. The Appellant has been incarcerated for about 2 years and six months. The offences for which the Appellant was convicted are not trivial. Leaving aside the irregularity
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in the proceedings, the evidence taken as a whole discloses a substantial case against the Appellant. There no special circumstances that would render it oppressive to put the Appellant on trial a second time. In my considered view, to refuse to order a retrial would occasion a greater miscarriage of justice than to grant it. I am therefore inclined to order a retrial.
Accordingly, it is hereby ordered that the case be remitted to the Honourable Chief Judge of Akwa Ibom State for reassignment and fresh trial of the Appellant before another Judge of the High Court of Akwa Ibom State.
Other Citations: (2016)LCN/8863(CA)
