Onuwa Kalu V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the Owerri Judicial Division of the High Court of Imo State, the appellant (first accused person, as he then was) and one Martin Egbufor were jointly charged with the offence of Armed Robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria, 2004.
Having pleaded not guilty to the charge, trial commenced with the Prosecution calling three witnesses in proof of their case. On his part, the appellant (as first accused person), not only testified in protestation of his innocence, he also called two witnesses.
My Lords, for reasons that would be evident anon, there is seldom any need for further voluble comments on the proceedings at the said Court (hereinafter, simply, referred to as “the trial Court”). Having regard to the appellant’s principal complaint (as embodied in his Notice and Grounds of Appeal), the only aspect of the trial that is relevant for the purposes of this appeal is what transpired thereat at the end of the oral testimonies.
The grouse of the appellant
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is that, though counsel had filed and exchanged their briefs – including a Reply brief, a Reply brief which was, nonetheless, never adopted in answer to the points of law raised in the respondents brief – the learned trial Judge proceeded to deliver his judgment. His Lordship, in effect, without allowing the appellant’s counsel to adopt the said reply brief, proceeded to write down His judgment. He found the accused persons guilty as charged; convicted and sentenced both of them to death by hanging.
By a plural decision, the Court of Appeal (hereinafter, simply, referred to as “the lower Court”) allowed the appeal to it. It ordered the case to be remitted to the Chief Judge of Imo State for re-assignment to another Court. Aggrieved by the majority decision of the lower Court, the appellant has approached this Court.
My Lords, the power of this Court to reframe the appellant’s issue (s) for the purpose of accentuating the principal question in controversy in the interest of clarity and brevity has never been in doubt, Musaconi Ltd v Aspinal (2013) LPELR – 20745 (SC) 6-7; I.T.I. V. Ltd and Anor v Onyesom Community Bank Ltd (2015) LPELR – 24819 (SC) 20;
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B-D; Unity Bank Plc. and Anor v Bouari (2008) LPELR -3411 (SC) 21,-22; A-B; Okoro v The State [1988] 12 SC 191; [1988] 12 SCNJ 191.
The appellant formulated four issues for the determination of the rather narrow question in this appeal, [Paragraph 3.0; pages 6- 7, of the brief]. However, I have taken liberty of this Courts said prerogative to prune them into just one issue. The aim is to narrow down the principal question in controversy having regard to his main complaint against the majority judgment of the lower Court as encapsulated in the Notice and Grounds of Appeal.
For this purpose, I take the view that only the first issue is actually determinative of this appeal. Okoro v The State (supra); Unity Bank Plc and Anor v Bouari (supra); Musaconi Ltd v Aspinall (supra); I.T.I.V. Ltd and Anor v Onyesom Community Bank Ltd (supra). Indeed, Chief Ahamba, SAN, urged the Court to consider issues one; three and four together.
The said first issue was couched thus:
Whether having regard to all the circumstances of the case, the Court of Appeal was right when in its majority judgment it upheld the appeal of the appellant but ordered his
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re-retrial instead of discharging and acquitting him
At the hearing of this appeal on January 26, 2017, Chief Mike Ahamba, Learned Senior Advocate of Nigeria, who appeared with James Ubogu for the appellant adopted the appellant’s brief which was filed on December 19, 2012, although, deemed properly filed on May 22, 2013. He equally adopted the reply brief filed on October 19, 2016 but deemed properly filed on January 26, 2017.
It was the contention of the learned senior counsel that, having regard to all the circumstances of the case, the majority judgment of the lower Court was wrong when it upheld the appeal but ordered a retrial. In his view, the appellant ought to have been acquitted of the said charge of armed robbery.
He cited the findings of the plural decision of the lower Court at page 291 lines 1-61 of the record. He then contended that the right to fair hearing is not just a common law right but also a constitutional right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Bamgboye v UNILORIN (1999) 6 SCNJ 295.
He opined that the address of counsel is an essential part of a
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partys case. As such, it is the duty of the Court to afford parties the opportunity of addressing it by way of the elucidation of the essential issues in favour of their case. Bernard Okoebor v Police Council (2003) 5 SCNJ 52.
The lower Courts finding he pointed out was that the trial Court violated the appellant’s right to fair hearing. This was predicated on the trial Court’s disapproval of counsels right to file his reply to the points which the prosecutions counsel had canvassed. In his submission, the lower Court ought to have acquitted and discharged the appellant instead of entering an order for his re-trial, citing Nnorodin v Ezeam (2001) FWLR (pt. 40) 1701; Karibo v Grend (1992) 3 NWLR (pt 230) 426.
He called attention to this Court’s attitude to proceedings conducted in breach of the right to fair hearing in Section 36 (supra), INEC v ADC [2009] A FWLR (pt 490) 668; Adanu v Akukaha (2008) All FWLR (pt 428) 352, 455; Edibo v. State (2007) All FWLR (pt 384) 192, 229. In particular, he relied on Edibo v State (supra) as authority for the proposition that an order for the discharge of the appellant was more
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appropriate rather than the lower Court’s order for his re-trial, Paragraph 4.15-4.16 (a)-(e); 4.77 -4.20, pages 9- 13 of the brief; Paragraphs 1.01-1.07 pages 1- 3 of the reply brief.
On his part, M. O. Nlemedim, the Honourable Attorney General and Commissioner for Justice, Imo State, who appeared with C. O. C. Emeka-Izima, for the respondent adopted the brief filed on March 5, 2013 in urging the Court to dismiss the appeal.
He drew attention to the pronouncement of the majority decision of the lower Court at page 129, lines 1- 6, of the record. His reading of the said pronouncement was that the lower Court made a finite finding namely that the trial Court’s error was its failure to allow the appellants counsel to “… amplify or his written address… before delivering its judgment.
He contended that the lower Court never made any finding that the appellants counsel was prevented from addressing the trial Court. He urged the Court to discountenance the submissions of the appellants counsel on this issue, citing FRN v Akubueze [2010] 17 NWLR (pt 1223) 525.
RESOLUTION OF THE SOLE ISSUE
My Lords, from the
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main agitation of the appellant in his Notice and Grounds of Appeal, the principal question for the determination of this appeal actually falls within a very narrow compass. In point of fact, the appellant’s grouse against the said majority judgment, as evident in the above-cited sole issue, eventuated from its main findings at page 291 of the record. Hear the views of the majority (per Owoade, JCA):
Having excluded the appellant’s counsel from a right of reply on points of law by the Court order of 4/2/2006, having fixed a date for delivering of judgment without any date for adoption of written addresses by the parties and having deprived the appellant through his counsel the opportunity to amplify on his written address, the trial Court shut out the appellant from fully entering his defence. The appellant was not heard. It is therefore clear that the appellant was denied fair hearing.
(Italics supplied)
As shown above, learned senior counsel for the appellant was enamoured of the lower Court’s finding that the appellant was denied a fair hearing. (Interestingly, the appellant’s four issues are woven around the same principal question of the
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breach of his right to fair hearing). Contrariwise, he is piqued by the consequential order that the result of the violation of the right to fair hearing should be a nullification of the entire proceedings.
With respect, this submission exemplifies the reasoning process which is classified as the fallacy of non-sequitur in the philosophical genre known as Logic and Clear Thought. Let me explain.
From the enchanting array of the decisions of this Court on the point, the trenchant provisions on the right to fair hearing – a right which is ordained in Section 36 (1) of the Constitution (supra) are far-reaching and ubiquitous indeed. I will return to this latter in this judgment. Before then, I intend to emphasize the special character of this right; a right which is known to most, if not, all legal systems.
The right to fair hearing in Section 36 (1) (supra), and indeed all the other fundamental rights, guaranteed in Chapter IV of the 1999 Constitution (supra) were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms which in turn, was influenced by the United Nations’ Universal Declaration of
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Human Rights of 1948, see, per Lord Wilberforce in Minister of Home Affairs v Fisher (1980) AC 319,329; also, Chima Centus Nweze, “The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies,” in Chima Centus Nweze et al (eds.), Beyond Bar Advocacy (Umuahia, Nigeria: Impact Global Publishers Ltd, 2011) 394 G. Ezejiofor, Protection of human Rights Under The Law (London: Butterworths, 1964) 182.
This background to these guaranteed rights was the proximate impulsion to the formidable prescription that their provisions should not be subjected to “the austerity of tabulated legalism.” On the contrary, they [their provisions] …call for a generous interpretation … suitable to give to individuals the full measure of the fundamental rights and freedoms referred to Minister of Home Affairs v Fisher (supra)
Instructively, this Court in cases too numerous to be cited here, has endeavoured to “give to individuals the full measure of the fundamental rights and freedoms referred to.” In particular, its attitude to the fair hearing provisions has been to seek after the highest possible ideal of justice and
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fairness.
Only a handful of cases will be cited here to illustrate this attitude. Ogboh and Anor v FRN (2002) LPELR -2285 (SC) 15; A-C; Igboha, Irepa LGC and Anor v T. B. S. C and Anor (1988) LPELR -1449 (SC) 16; D-E; The State, Ex Parte Joseph Ajidasile Olakunrin and Ors v. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors [1985] 5 SC 161, 193, 233; Akere and Ors v Gov of Oyo State and Ors (2002) LPELR -7806 (SC) 67; B-D.
Others include; Adesoke V Adibi (1992) 5 NWLR (pt. 242) 410, 420; Odiase v Agho (1972) 1 All NLR (pt. 1) 170; Ejowhomu v Edok-Eter Mandilas Ltd [1986] 5 NWLR (Pt. 39)1; Oje v Babalola (1991) 4 NWLR (pt.185) 267, at Abbas and Ors v Mogaji and Ors [2001] 11 SC 1, 14; Hart v. Military Governor of Rivers State (1971) 11 SC 211; LPDT v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300, 347; Baba v. N.C.A.T.C. (1991) 5 NWLR (pt.192) 388, 414 and so on.
This, unarguably was the con that yielded this Court’s opinion in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E that:
Human rights in our written Constitution mark a standard of behavior which we share with all civilized countries of the word. Since the United Nations Universal Declaration
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of Human Rights in 1948, though it s still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been breached in a judicial proceeding, it vitiates the proceeding. If therefore, I find that it was breached in this case, I shall have no alternative but to allow the appeal. See- Michael Uda Udo v. The State (1988) 3 NWLR (Pt. 82) 316; Galas Hired v. The King (1944) A.C. 149; Dixon Gokpa v. IGP (1961) All NLR 423; R v. Mary Kingston 32 C. App. R. 183; and Godwin Josiah v. The State (1985) 1 NWLR (pt 1) (sic). And fair hearing in this respect compendiates not only compliance with the two rules of natural justice – audi alteram partem and nemo judex in Causa sua. It entails complying with all the provisions of that section of the Constitution. It also entails
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doing, during the course of the trial, all things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides to the trial.
[Italics supplied for emphasis]
From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance. Okanlawon v State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor v Mohammed and Anor (2008) 5-6 SC (pt.1) 83; Deduwa v Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.
Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State v Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa v. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined,
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State v Onagoruwa (supra); nay more, it applies from the beginning to the end of the trial. Oyewole v Akande and Anor (2009) LPELR- 2879 (SC) 36-37; Deduwa v. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. v. Attah (2006) 12 NWLR (pt 993) 144; A. G Rivers State v. Ude (2006) 17 NWLR (pt 1008) 436.
It is this logic that yielded the reasoning in the decisions of this Court: decisions which are remarkable for their unanimity on the point that it [that is, fair hearing] imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the forensic conflict. Ndu v. The State [1990] 7 NWLR (pt.164) 550, 578; Ekpeto v Wanogho [2005] All FWLR (pt 245) 1191, 1203; Amamchukwu v FRN [2009] All FWLR (pt 465) 1672, 1679. It therefore does not anticipate a standard of justice which is biased in favour of one party but prejudices the other. Ekpeto v Wanogho (supra).
Above all, it is not a technical doctrine, but one of substance, Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14 -15; Kotoye v C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. The touchstone for determining the observance of fair hearing in trials is not the question whether any
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injustice has been occasioned on a party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. J.C.C. Inter Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu v. FRN (2009) LPELR -455 (SC) 11-12.
It is thus outrageous to deny a party an opportunity of hearing,Onyeneh v. Egbuchula (1996) 5 NWLR (pt. 448) 255, 265, Gyang and Anor v COP, Lagos State and Ors (2013) LPELR -21893 (SC) 12- 13; A.R v. Electricity Joint Commission (1968) NMLR 102; Adeyemi v. A.G. Federation [1984] 1 SCNLR 525.
Once there is such a denial of the said right, the only order that could be made on appeal is one for re-trial or rehearing. This is to enable the appellant to be properly heard. Otapo v Sunmonu [1987] 12 NWLR (pt 58) 587; Salu v. Egbeibon (1994) 6 NWLR (pt 348) 23; Danladi v Danladi (2014) LPELR -24020 (SC) 58; C-E.
STATUS OF FINAL ADDRESSES IN THE CON OF FAIR HEARING
As shown above, the principal complaint in this sole issue was that the lower Court found that the trial Court did not allow the appellant’s counsel to file a reply to address the points of law which the
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Prosecution raised. In that finding of the lower Court, this resulted in the breach of the appellant’s right to fair hearing. In consequence of that breach, it nullified the proceedings of the trial Court and ordered a re-trial of the armed robbery charge. The appellant’s counsel fulminated against this order of re-trial! In his submission, the appellant should have been acquitted and discharged.
Now, it is undeniable that Section 294 (1) of the Constitution of the Federal Republic of Nigeria consecrates the right to final addresses. Sodipo v Lemminkainen Oy [1985] 2 NWLR (pt 8) 547; Mustapha v Governor of Lagos State (1987) 2 NWLR (pt 58) 539; Ijebu Ode v. Balogun and Company Ltd. (1991) LPELR 1463 (SC) 31-32; F-A; Okeke v State (2003) LPELR – 2436 (SC) 19-20; F-A.
The said expression “final addresses” means the last or ultimate speech or submission made to the Court in respect of the matter before it, before the delivery of the judgment. Put simply, it is the last address before the delivery of the judgment. Sodipo v Leminkainen Oy (supra); Mustapha v Governor of Lagos State (supra); Ijebu Ode v Balogun and Company Ltd (supra); Okeke v
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State (supra). It [final address] is the penultimate part of the three most important portions of the trial period; the first, being the hearing of the evidence; while the last is the judgment, Okeke v State (2003) LPELR -2436 (SC) 19 -20; F-A.
Such is its pedestal in the administration of justice that when counsel or a party is denied this right [that is, of address], the trial Court is equally deprived of its enormous benefits. Its inevitable consequence is that a miscarriage of justice has been occasioned. Okafor and Ors v A.G., Anambra and Ors (1991) LPELR-2414 (SC) 28; A-C; Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111; Adigun v A-G of Oyo State (supra). This explains why a party must have the same right as given to his adversary to offer, by his counsel, the final address on the law in support of his case. Ndukauba v Kolomo and Anor (2005) LPELR -1976 (SC) 12; A-D.
It would thus seem obvious that the draftsperson of this section [Section 294] had in mind the eloquent views of a distinguished American Jurist, Dillon, who observed in his Laws and Jurisprudence of England and America that;
I feel reasonably assured of my judgment where I
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have heard counsel, and a very diminished faith where the case has not been orally argued, for mistakes, errors, fallacies and flaws elude us in Spite of ourselves unless the case is pounded and hammered at the Bar…
[Italics supplied for emphasis]
Now, prior to the evolution of brief writing in various Rules of our Courts, counsel actually “pounded and hammered [their arguments] at the Bar. In place of that practice which has now fallen into desuetude, one of the new features introduced by these rules is the concept of advocacy in writing, that is, brief writing, whose main purpose is to curtail the time that should have been wasted in lengthy oral arguments. Onifade v Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160: oral arguments in which verbose counsel beat out the bush, Omojasola v. Plison Fiska Nig. Ltd and Ors (1990) 5 NWLR (Pt 151) 434, 441.
Thus, although oratorical prowess was previously a great asset in advocacy due to the great changes which have been wrought in the Court rules, proficiency in the presentation of briefs has taken the place of brilliancy in oral advocacy. Gaamstac Eng. Ltd and Anor v FCDA (1988) 4 NWLR
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(pt 88) 296, 305-306.
Broadly speaking, these briefs fall into three categories: the appellants brief; respondents brief and reply brief, Godsgift v State (2006) LPELR-40540 (SC) 32-33. In this case, as shown above, the lower Court found that the trial Court did not allow the appellant’s counsel to file a reply [brief] to address the points of law which the Prosecution raised. In that finding of the lower Court, this resulted in breach of the appellant’s right to fair hearing.
I agree with the reasoning of the majority of the lower Court on this point. As settled on the authorities, the function of a reply brief is to refute the new arguments in the respondent’s brief, that is, a reply brief is usually filed in response to new issues raised in the respondents brief. Sakati v Bako and Anor (2015) LPELR -24739 (SC) 25, Godsgift v State (supra); Unity Bank Plc v Bouari (2008) LPELR -3411 (SC) 29 -30; B-C; Cameroon Airlines v. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A; Longe v FBN Plc [2010] 2-3 SC 61; Mozie and Ors v. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.
Although it is not mandatory for an appellant to file a
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reply brief. However, where a respondents brief raises a point of law not covered in his (appellants) brief, he (appellant) ought to file a reply (brief). Indeed, where he fails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent’s brief, he may be deemed to have conceded to the points of law or issues so raised in the respondent’s brief.
The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift v State (supra); Longe v FBN Plc (Supra); Harka Air Services (Nig) Ltd v. Keazor (2011) 6-7 (Pt. II) 1; Dairo v Union Banks (2007) 7 SCNJ 13; Mini Lodge Ltd v. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F; A.C.B v. Apugo (1995) 6 NWLR (Pt. 399) 65 E.I.I.A v. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119: Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Akinrinmade v Lawal [1996] 2 NWLR (pt 429) 218; Musaconi Ltd v Aspinall (2013) LPELR-20745 (SC) 21-22.
Against this background, therefore, there can be no doubt that the lower Court was right when it held, per the majority judgment of Owoade, JCA that:
Having excluded the appellants counsel from a right of reply on points of law by the Court
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order of 4/3/2006, the trial Court shut out the appellant from fully entering his defence. The appellant was not heard.. It is therefore clear that the appellant was denied fair hearing.
[Italics supplied]
Unarguably, the appellant’s defence included not only the points he canvassed in the main brief but also his reply to the points of law which the respondent agitated in the brief urging the trial Court to find in favour of the appellant’s guilt, as charged in the case of armed robbery before it. Surely, by excluding the appellant’s counsel from replying to the respondent’s point of law, the trial Court’s approach, as the lower Court rightly found, denied the appellant of his right to fair hearing. After all, the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. Otapo v Sunmonu and Ors [1987] NWLR (Pt. 58) 587; Obaro v Hassan (2013) LPELR- 20089 (SC) 32-33; E-B; Tunbi v Opawole [2000] 2 NWLR (pt 644) 275.
In this case, the question is: since, according to the lower Court, “the trial Court shut out the appellant from fully entering his
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defence,” what must have been the impression of the reasonable person who was present at the trial Could such a reasonable person have left that Court with the impression that the said hearing in an armed robbery case qualified as fair hearing Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628; Otapo v. Sunmonu (supra); Gukas v. Jos Int. Breweries Ltd (1991) 6 NWLR (pt. 199) 614; Ndukauba v Kolomo and Anor (supra).
Having denied the appellant’s counsel the said right, there can be no doubt that the trial Court was equally deprived of its enormous benefits. Its inevitable consequence was that a miscarriage of justice was occasioned on the appellant. Okafor and Ors v A.G., Anambra and Ors (supra); Ibodo v. Olomu (supra); Adigun v. A-G of Oyo State (supra). I thus, entirely, endorse the lower Court’s conclusion that this approach of the trial Court vitiated his entire proceedings and effectively rendered them void and of no effect. A.G, Rivers State v Ude and Ors (2006) LPELR -626 (SC) 19; B-D.
My Lords, that is not the end of the matter. Learned senior counsel for the appellant agreed that the trial, having been conducted in breach of the
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appellant’s right to fair hearing was a nullity. Somewhat, most curiously, he entertained the hope that a positive order of the trial Court should nave eventuated from the said null proceedings.
Citing Edibo v The State (2007) 13 NWLR (Pt. 1051) 306, 327, he strenuously urged the Court to substitute the order of re-trial made by the lower Court with an order discharging and acquitting the appellant. Paragraphs 4.11-4.20; pages 8-13 of the brief].
With respect, this submission is clearly preposterous. That is why I classified the reasoning process that yielded it [that is, the submission] as exemplifying the fallacy of non-sequitur. As shown above, learned senior counsel endorsed the lower Court’s position that the approach of the trial Court vitiated its entire proceedings and effectively rendered them void and of no effect. Pray by what sketch of logic could such void proceedings yield a positive order of the acquittal and discharge of the appellant at the same time
In ordinary parlance, the word acquittal from the Latin word verbum equivocum, may be used to express either the verdict of the jury [where jury trials
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obtain] or the judgment of a Court. Nafiu Rabiu v Kano State (1980) LPELR -2936 (SC), citing J. B. Saunders, Words and phrases Legally Defined (Second edition); 102 -103; D-A. In effect, it is a term employed to describe a Court order which sets an accused person free from the charge of an offence, Chief of Army Staff and Ors v Iyen (2005) LPELR -3165 (SC) 37; D- F, However, it must be emphasized that an acquittal of an accused person in a verdict can only be returned on the consideration of the case on the merits, Nigerian Air Force v Kamaldeen (2007) 2 SC 131.
APPROPRIATE ORDER UPON BREACH OF RIGHT TO FAIR HEARING
Chief Ahamba, SAN, on the one hand, endorsed the lower Court’s finding that the trial Courts violation of the appellant’s right to fair hearing vitiated its [that is, trial Courts] entire proceedings and effectively rendered them void and of no effect. On the other hand, he nevertheless argued most strenuously that the Court’s order for the appellant’s re-trial was inappropriate. In his submission, he [the appellant] ought to have been favoured with an order for his acquittal.
Surely, the first arm of his submission
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is unanswerable. As already shown above, once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. Audu v FRN (2013) LPELR -19897 (SC) 13; D-F; Akinfe v. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333. Even then, the effect of such a denial would be more critical in a criminal case, [in the instant case, the offence charged was armed robbery], Adebisi v State (2014) LPELR -22694 (SC) 40; A-C.
The second arm of learned senior counsel’s argument is with profound respect very weak-kneed. The decision in Abodunde v The Queen [1959] 4 FSC 70, 73-74 is well acknowledged as the locus classicus on the principles for ordering a re-trial. See also; Eyokoromo and Anor v State [1979] 6-9 SC 39; [1979] NSCC 61, 65; (1979) LPELR- 1187 (SC) 6; Akwa v The State (1969) 1 All NLR 133; Okafor v State (1976) 5 SC 13; Ikhane v COP (supra).
In the said Abodunde v. State (supra), the Federal Supreme Court enunciated the following five principles:
We are of the opinion that,
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before deciding to order a retrial, this Court must be satisfied-
(a) That there has been an error in law (including) 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 Section 11 (1) of the Ordnance; (b) that leaving aside the error, or 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 rental would occasion a greater miscarriage of justice than to grant it.
In Udo v The State (1988) LPELR -3299 (SC) 24, this Court, after considering the five principles enunciated in Abodunde v The Queen (supra), concluded, with respect to the fifth principle that “[Paragraph (e) [supra] demands justice
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not only to the appellant but also to the deceased, his relations and dependants, and to society. It accordingly ordered a re-trial so that the appellant [just like the appellant in the instant case] who was facing a charge in a capital offence should take his trial; be either acquitted or be convicted, if found guilty as charged.
Like in Udo v The State (supra), I take the view that the appellant, who was accused of the offence of armed robbery should return to the High Court of Imo State [before another judge] for a re-trial; be either, properly acquitted or be convicted if found guilty as charged.
In all, the reasons advanced above obviate the need for my consideration of the other issues which, as shown above, revolve around the main question of the breach of the appellant’s right to fair hearing: an issue I have copiously dealt with above. I find no merit in this appeal.
Appealed dismissed. I hereby enter an order affirming the majority judgment of the lower Court. Accordingly, this matter shall be remitted to the Chief Judge of Imo State who shall, as a matter of urgency, assign it to another Judge for its
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expeditious hearing and determination. Appeal dismissed.
SC.474/2011
