Sunday Adeleke Osayomi & Ors. V. The State (2006)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
The case commenced from the Chief Magistrate’s Court, Grade II, Osan-Ekiti in Otun-Ekiti Magisterial District of Ekiti Slnle, where the appellants were charged for five counts as follows:-
(i) Count I – First Appellant allowed himself to be illegally installed as Oba.
(ii) Count II – First Appellant held himself as Oba
(iii) Count III – 3rd, 4th and 5th Appellants illegally installed 1st Appellant as Oba.
(iv) Count IV – All Appellants engaged in unlawful assembly.
(v) Count V – All appellants conducted themselves in a manner likely to cause a breach of the peace, 1st
appellant herein stood for counts I, II, IV and V.
Initially, eight persons were charged but before the end of trial, at different stages of the case, 2nd, 3rd and 5th accused persons died. The case proceeded to trial with the rest of the accused persons. The learned trial magistrate found the counts proved, convicted and sentenced the appellants to various terms of imprisonment as stated hereunder:-
(i) Count I – First accused: One year imprisonment with hard labour.
(ii) Count II – First accused: Three years imprisonment with hard labour.
(iii) Count III – 2nd, 3rd, 5th, 6th and 7th accused, one year imprisonment each with hard labour.
(iv) Count IV – 1st, 2nd, 3rd, 5th, 6th, and 7th accused fine of N200 or 6 months imprisonment with hard labour.
(v) Count V – 1st, 2nd, 3rd, 5th, 6th and 7th accused persons, fine of N100.00 or one month imprisonment with hard labour.
Their appeal to the High Court, Ado-Ekiti was dismissed. The convictions and sentences of the learned trial Magistrate were affirmed.
They have filed appeal to this court.
Briefs were filed and exchanged. The Appellants formulated six issues for determination to wit:-
a. Whether or not the lower court rightly confirmed the judgment of the court of trial when the said trial court was patently biased and prejudiced against the appellant (Ground 4).
b. Whether or not the lower court rightly upheld the judgment of the trial court before which appellant had no fair trial (Ground 3 and 5).
c. Whether or not the lower court rightly upheld the judgment of the trial court on Counts IV and V which are a duplication and triplication of Count III and are even wrong in the circumstances (Ground 2).
d. Whether or not the lower court rightly upheld the conviction and sentence of the Appellant by the trial, (sic) which did not consider the defence of the Appellant (Ground 7).
e. Whether or not the lower court rightly upheld the conviction of the Appellant when the trial court delivered its judgment in the absence of some of the Appellants (Ground 6).
f. Whether or not the lower court rightly confirmed the judgment of the lower court which is excessive in the circumstances. (Ground 8).
The respondent adopted all the issues formulated by the Appellants and formulated one additional issue for determination as follows:
“1. Whether in view of decided cases and given the circumstances of this case, even if all the grounds of appeal are upheld by this Honourable Court, the proper order to make is order of discharge and acquittal.
OR Alternative to (i) above:
Whether leaving aside any errors of irregularity, the evidence adduced by the prosecution disclosed a substantial case against the appellants.
On 16/2/06, learned Counsel for the parties adopted their written briefs. Learned Senior Counsel for the Appellants, A. O. Akanle (SAN) informed the court that, they filed separate brief for each Appellant and on issue II, submitted that the punishment, particularly sentencing with hard labour was excessive. He relied on the case of Essien and others v. C.O. P. (1996) 5 NWLR (Part 449) P.489 at P.505, Paras A-E. Learned Counsel further submitted that the question of re-trial was made an issue. The Appellants should not be sent back for re-trial. He relied on the case of Ajayi and others v. The State (1978) L.R.N. P. 260 at P.265.
Learned Counsel for the Respondent, Mr. Ogumoye Solicitor-General, Ekiti State, whilst adopting their brief submitted that the re-trial is just an alternative prayer. Their major prayer is that the case should be dismissed. He relied on the case of Morenikeji and others v. Adegbosin (2003) 8 NWLR (Pt.823) 612.
On issue A, bias and prejudice of the trial, learned counsel, started with the proceedings of 12th day of October, 2001, in which the learned counsel for the accused persons averred as follows:-
“……We have written a final letter to the Chief Registrar with due respect to the Court we are saying that the present state, the accused persons and their counsel have lost confidence in the court, we have alleged that your worship had once told K.B.A. Badmus, Esqure the former counsel to the accused persons that this court was going to convict them even when hearing had commenced, we have also alleged that how J. A. Aborisade, a witness who had given evidence have continued to say that your worship would come back to accomplish the conviction of the accused person.
We have also made complaint on the role played by counsel to the defendant in Suit HCJ/20/93 in the Ijero High Court will rely on its entirely, the letter written to the Chief Magistrate and wish to submit that justice is noted in confidence and once the confidence is lacking there would not be said to be fair trial.
In the light of this we are submitting that this is a proper case for another adjudicator to adjudicate to conduct the case”.
In response to the serious allegation stated above, the learned trial Magistrate, on page 106 of the recorded stated thus:
“The last date we had progress in this matter was 6/4/2001 after which I was transferred. Vide…. directions under Sections 32(2) of the High Court had…. dated 16/8/2001 the Honourable Chief Judge of Ekiti State directed that I should go into this court for the purpose of hearing this matter to finality, this fiat I am now complying with. It is my belief that to disobey this direction would defeat the purpose of justice on the application of the learned counsel for the defence, I hold that I cannot hands off since there is a subsisting directive from the Honourable Chief Judge which was required to letter written by counsel on both sides and on the application for adjournment, I hold that I had granted a similar application at the last sitting on 14/9/2001, to grant same now would also, not be in the interest of justice.”
Learned Senior Counsel for the Appellant, contended that the question here is no matter of ordinary adjournment, it is rather a grave matter as to whether the Chief Magistrate should continue hearing the case after such a serious allegation of bias and prejudice had been made against him, which incidentally did not deny. Equally the prosecuting counsel had no explanation to make, so submitted the Learned Senior Counsel. Learned Senior Counsel submitted that, the fact that the Chief Judge gave a FIAT does not mean that at all costs such fiat must be carried out to the letter even if a grave injustice would be done. It is his further submission, that the learned trial Magistrate did not call to question the co-alleged of his, J. A. Aborisade and counsel to the respondent (Complainants) in the case herein. Learned Senior Counsel argued that, in a situation like this, the legal presumption is that, the Chief Magistrate was biased. He relied on the cases of Kujore v. Otubanjo (1974) 1 ANLR (Pt. II) 100 at P. 106 (Para 1) and Ikelni Olue v. Obi Enenwali (1976) 1 ANLR (Vol. 1) 83 at 91- 92.
Learned Senior Counsel submitted, that since such a serious allegation was made against the learned Chief Magistrate and he did not rebut or deny same and refused to interview the two co-alleged persons, there can be no doubt of his bias against the appellants. Learned Senior Counsel urged us to resolve this issue in favour of the Appellant allow the appeal and set free the appellant.
I pause a while to state that, the learned Senior Counsel, made identical submissions word for word and comma for comma in respect of the other appellants (i.e. 2nd, 3rd, 4th, and 5th Appellants). I do not consider it necessary, therefore to produce his arguments in respect of the other appellants. I am of the firm view that point canvassed for the 1st Appellant as well as prayer therein are equally applicable to the other appellants and I so hold.
In a brief settled by Chief Duro Ajayi, Hon. Attorney-General, Ekiti State, learned Counsel for the Respondent submitted that, the appellants have not established or proved bias or prejudice against the learned trial Magistrate beyond the spurious, wild and unsubstantiated allegation of the learned defence counsel which was a fallout of his own imagination. Learned Counsel further submitted that, all the allegations of bias and prejudice are hearsay and do not in law and infact constitute a proof of a grave allegation of bias and or a denial of fair hearing.
It is the submission of the learned counsel that, the appellants merely alleged that their former counsel, K.B.A. Badmus Esq. TOLD them that the trial Magistrate INFORMED him that he was going to convict the Appellants. The said Badmus did not supply facts of the occasion or meeting between him and the trial magistrate where this statement was purportedly made. Likewise, the purported boasting of one of the prosecution’s witnesses one J.A. Aborisade that the trial Magistrate would convict the Appellants was not substantiated anywhere throughout the record of proceedings.
Learned Counsel submitted that the court has never accepted the suspicion or hearsay test but such allegation, must be based on provable circumstances and verifiable evidence. He further submitted that the allegation was at best informed by hearsay and or suspicion which is not admissible or constitute a proof in law as the courts act on evidence not hunces or rumours however grave or reasonably believable. He relied on the case of Ahmed v. The State (2002) 1 S.C.M P. 33 at P. 36; 2001 18 NWLR (Pt.746) 622.
Learned counsel submitted that, contrary to the contention of the appellants that the trial Magistrate had not denied the allegation, leveled against him, he (trial Magistrate) had taken the best option in the circumstances by ignoring the spurious and hearsay allegation of bias being made against him by the Appellants. Learned Counsel urged us to resolve this issue against the Appellants.
Now, it is trite law that, to charge a court with bias or likelihood of bias, there must be cogent and reasonable evidence to satisfy the court that, there was-in fact such bias or real likelihood of bias as alleged. It is squarely a grave matter and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint. See the case of Muhammed Oladoja v. Ojengbede (2002) 1 S.C.M. P. 187; (2001) 18 NWLR (Pt.746) 771.
The question then arises as to whether the Appellants have established facts and grounds supporting the allegations against the trial Magistrate. All though justice in law must not only be done but seen to be manifestly done, however absence of justice not seen to be manifestly done, cannot be played by sheer and vague suspicion and scandalous allegation against the trial court. In the case of The Secretary Iwo L.G. v. Adio (2000) 8 NWLR (Pt.667) 115 at 153; (2000) 2 SCNQR P. 752, the apex court held per Uwaifo J.S.C. at P.777 – 778 thus:
“I certainly will be unwilling to extend the test of real likelihood of bias beyond what is based on the reasonable apprehensions of a reasonable man fully appraised of the facts and circumstances of matter. The standard of capricious and unreasonable people should not be allowed to determine and control the legal aphorism that justice must not be manifestly seen to be done otherwise judicial or quasi-judicial functions would be almost impossible to perform.”
I am of the firm view that a trial judge call only be said to be interested in a case so as to preclude him from hearing a matter when any of the following instances obtain:
(i) when he would seem to be Judge in his own court OR
(ii) when having dealt with the same issue and it came or resurfaces when he is in a superior court and he is being called upon to decide an appeal against his own decision OR
(iii) because of some obvious or latent connection of his with either of the parties or all of them.
See the cases of Onigbede and Others v. Balogun and Another (2002) 6 NWLR (Pt.762) 1; (2002)4 S.C.M.P. 147 – 149 and Adio v. The Secretary Iwo L.G. (2000) 8 NWLR (Pt. 667) 115; (2000) 2 S.C.N.P.R. 752 at Pp 777 – 778.
I have carefully gone through the facts set out by the learned senior counsel for the appellants and I cannot find any where in the record that showed the trial Magistrate was personally interested in the case. They were all acts done in the exercise of his judicial discretion.
Learned Senior Counsel made heavy weather of the fact that the learned trial court did not deny the allegations levelled against him. With due respect to the learned counsel, the conduct of any court is highlighted by its patience in the face of explosive situations. The silence does not necessarily imply an admission. Salmon I.J. Regina v. Commissioner Of Police of Metropolis Ex-Parte Blackburn No.2 (1968) 2 QB 150 at 157 had aptly observed on this point when he positioned that:
“Silence is always on option and in my considered view a good option too”
In the same vein, the Supreme Court per Obaseki Obiora v. Osele (1989) 1 NWLR (Pt. 97) P. 279 at P. 296 held thus:
“Judges should not loose their temper with counsel or litigant no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice.”
I would like to pause a while to comment on the exemplary conduct of the Learned trial Magistrate in the face of this brazen and unwarranted attack by the counsel for the appellants. I must say that the learned magistrate acted with candour and not replying the insulting remarks of the counsel was the best option, exercised in the circumstances he found himself.
It is pertinent to state at this juncture that the appellate courts have in a plethora of decided cases admonished counsel on the use of insulting language by counsel in open court. This Court in the case of Chukwuogor v. A.-G. Cross River State (1998) 1 NWLR (Pt.534) 375 at 407 had this advice for counsel like the Appellants’ counsel in this case:
“Insulting language does not improve advocacy, rather it destroys it. Insulting language tells so much about the character of counsel. Judges are not happy with such language. I have said it in the past and I will say it again that Judges are not on the bench to be insulted by counsel rather they should be respected”
Oguntade JCA (as he then was) lamented on this type of attitude when he said in the case Pipeline Engr GMBH v. Rhodes (1999) 12 NWLR (Pt.630) 217 at 225;
“I am surprised that appellant’s counsel could permit it to be deposed to that a Judge has a likelihood of vested interest just because the judge had made some judicial order against his client. It is scandalous in the extreme and it seems to me as an unjustifiable manner to ridicule the judiciary”
In the light of all that I said on this aspect of the case, the conduct of the counsel for the appellants at the trial Magistrate Court was most despicable and unbecoming of a member of the honourable profession. I can not agree more with the learned judge that the learned counsel threw caution into the winds and he was lucky to get away with it. In sum, this issue must be resolved against the Appellants. They have woefully failed to discharge the burden placed on them to establish their allegations of bias and prejudice against the learned trial chief Magistrate and I so hold.
I now go to the 2nd issue. This issue is premised on the fairness of the trial of the Appellants at the trial Court. The learned Senior Counsel itemized a number of particulars ranging from refusing to grant stay of proceedings; refusing adjournment at the instance of counsel for alleged ill-health; absence of counsel; ignoring counsel’s letter of adjournment; asking the accused to open their defence; fixing a date for judgment and submitted that, what the Chief Magistrate did to the defence counsel and the accused persons on pages 132 to 141 of the record of proceedings can never be regarded as fair hearing.
Learned counsel submitted that law and practice enjoins the Chief Magistrate to grant an adjournment, immediately counsel to the accused said that he was ill although granting adjournment is discretionary. He relied on the case of Opara v. Chinda (1996) 2 NWLR (Pt. 432) P. 527 at P. 537 Para G; Page 538, Para A.
Learned counsel further submitted that the Chief Magistrate also visited the sin of the counsel on his clients by forcing the accused persons to continue handling the case themselves and this was done to end of the case. This according to the counsel, is against the principle of law that the sin of the counsel should not be visited on the client. He relied on the cases of Doherty v. Doherty (1964) NMLR P. 144 at P. 146; Akinyede vs. Appraiser (1972) 1 ANLR P. 165; and Attorney-General of the Federation v. A.I.C. Limited (1995) 2 NWLR (Part 378) 388 at 403, Para A.
Learned counsel submitted that since the accused persons had no counsel at the close of the case under consideration, the court was duty bound to explain the provisions of Section 287 of the C.P.L. to them. Learned counsel further submitted that, if the alternatives were properly explained to the Appellants. ‘I rely on my statement to police’ could not have been an answer at all. It is the contention of the Learned counsel that the alternatives if properly put to the appellants, their answer would have been one of the following:-
(i) I will give unsworn evidence,
(ii) I will give sworn evidence,
(iii) I have nothing to say.
Learned Senior Counsel, submitted that the appellants were not allowed a free and fair trial and were not given opportunity of defending themselves. Section 128 of the C.P.L. is of no avail because appellants were not in addition asked if they had any witnesses. He relied on the cases of Oladimeji v. The King 13 WACA 275 at 276; and Salawu Atunde vs. C.O.P. 14 WACA 171 at 173. Learned Senior Counsel, urged us to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that the appellants’ counsel, had cleverly itemized a number of particulars which he considered as constituting a denial of fair hearing. Regrettably however, he has omitted or failed to situate the facts fitting in the circumstances in which they actually occurred so as to avail this court the congruous opportunity of knowing whether in the light of the peculiar circumstances of this case there has indeed been a denial of fair hearing to the appellants.
Learned counsel further submitted that, granting an adjournment by the court in genuine cases necessitating such is not an uncommon development in judicial process. However, same cannot be said of the appellants before the trial court whose past time was to ask for adjournment even for obviously ridiculous reason(s) or forced an adjournment on the trial court through either absence of the defence counsel or one or two of the accused/appellants feigning sickness with the sole objective of tendentiously stalling their trial.
Learned counsel submitted that, the law is far too settled to generate controversy, that where a party to a suit has been given ample opportunity to present his case, but decidedly fails or elects not to do so he cannot later turn round to complain of denial of opportunity to present his case, as a party cannot be forced do so. He relied on the case of Ajidahun vs. Ajidahun (2000) 4 N.W.L.R. (Pt.654) at 615, Paragraph E.
It is the submission of the learned counsel that, the trial court did not visit the sin of the counsel on the appellants as they have the constitutional right and option of engaging another counsel if they had found their counsel uncooperative for whatsoever reason as they had previously done in the time past in the case when the trial court granted them an adjournment on request to brief another counsel.
Learned counsel submitted that, contrary to the submission of the appellant that the trial court failed or omitted to give observance to the provision Section 287 of the CPL, the trial magistrate complied with the said provision by demonstrating on the record of proceedings that “the accused persons elected S.287(1) and have no witness in court to testify in their defence.” (underlining supplied for emphasis).
In recent time, the appellate courts on the purport of fair hearing, specifically in the case of Kotoye vs. C.B.N. (2001) FWLR (Pt.49) P.156 at Pp.1590 – 1600, the apex court had this to say:
“Fair hearing is synonymous with fair trial and implies that every reasonable and fair minded observer who watches the proceedings shall be able to conclude that the court has been fair to all the parties concerned.”
His Lordship, Justice Nnaemeka-Agu JSC at P. 1604 further stated:
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing.”
The question to be asked on the onset is, whether the Appellants had been given the opportunity of presenting their case at the trial court before judgment was delivered on the 26/09/2002. To answer this question, recourse had to be made to the record of proceedings. On the 2nd May, 2001 when the case came up for further hearing, the defence counsel was absent and wrote to the trial court for an adjournment. His reason was that he was attending to his younger sister one Felicia Bolanle who had just undergone a caesarian operation. One would wonder that the defence counsel would be doing in this circumstance to be attending to his younger sister. The fifth and the last prosecution witness (i.e. PW5) gave his evidence in chief on 29th October, 2001 and cross-examination and opening of defence by the defence counsel was adjourned to 9/11/2001. The defence counsel was absent on the adjourned date (i.e. 9/11/2001) consequent upon which the court adjourned the case to 23/11/2001. When the case came up on 23/11/2001, the defence counsel was in court but curiously it was the turn of the 6th accused person to be absent on the ground of ill-health.
It can also be seen from the record of the trial magistrate that, due to an interlocutory appeal, the trial was truncated until 12/7/2002 when it commenced, the case was adjourned on 13/8/2002 at the instance of counsel for the appellants. On 13/8/2002, due to the delay tactics approach to the expeditious hearing of the case, the defence counsel was again absent in court. Explaining the absence of his counsel, the first Appellant had this to say:
“I visited our counsel yesterday and he promised to be in court today, when we got to his house this morning, we however learnt that he has taken his father somewhere….”
The Court was eventually forced to adjourn the case for continuation to 21/8/2002 and 22/8/2002. And again, on 21/8/2002, the defence counsel was absent, consequent upon which the trial court had to discharge PW5 who had been consistently coming to court for his cross-examination. On that occasion, the 2nd accused Appellant, informed the court as follows:-
“The court should forgive us, we have begged the lawyer who refused to come toda.”
The trial court, as can be gleaned from the record, adjourned the case for judgment to 17/9/2002 upon the appellants relying on their statements to the police and having no witness to call. The defence counsel, suddenly appeared in court on the day judgment was to be delivered but not after perfecting their plan, as two of the accused persons (i.e. the 2nd and the 7th) were not in court with their counsel parading medical reports to explain their absence.
I pause a while, to say that in the light of all that I said above, the question posed earlier in the course of treating this issue must be answered in the affirmative. It is settled beyond peradventure that the requirement of fair hearing in any criminal proceeding under Section 36 (4) of the Constitution is not only for the benefit of the accused; it is also for the benefit of the state, the complainant and the society at large. For just as a court has no authority to rush the determination of a criminal case or anyone for that matter, in a manner to deprive the accused fair trial or his right to be heard, so also is the accused not entitled to hold the court and the state to ransomed, by doing things or taking steps deliberately intended or calculated to scuffle or frustrate a fair trial of a case. Counsel should not be asking for unnecessary adjournments as has been the case in this particular case.
That aside, counsel for the appellants made heavy weather of non-compliance with the provision of Section 287 of the CPL by the learned trial Chief Magistrate. With due respect to the learned Senior Counsel, the trial Chief Magistrate complied with the provision of Section 287 of the CPL by demonstrating on the record of proceedings that “the accused persons elected S. 287(1) and have no witness in court to testify in their defence.” (Italics for emphasis).
A careful consideration of the foregoing statement will readily unveil that it was a response to a request or a question. Unarguably, before the Appellants could possibly elect Section 287(1) of the Criminal Procedure Law, there is presumption that they must have been informed of what that provision entailed as a person cannot asked the unknown. In the same vein, the response of the Appellants as shown by the court’s record that they had no witness in court to testify in their defence could not by inexorable logic be anything less than a response to a question as to whether or not the Appellants had any witness they intended to call to establish their defence. On the whole, in the light of all that I said, this issue, like the previous one, is resolved in favour of the Respondent against the Appellants.
The third issue for determination for the 1st Appellant, relates to the competency of Count II. He was charged for holding himself out as Olosan of Osan-Ekiti. The count, learned senior counsel, contended was brought under section 12(1) of the Chiefs Law, the offence created in the said section, however, is either illegally installing a person as chief or a person allowing himself to be illegally installed. Learned Senior submitted that, holding oneself as illegal Chief is no offence under Section 12 (1) of the Chiefs Law.
The count, he further submitted, is wrong as well as the conviction and sentence thereon can not stand, He relied on the cases of Okeke v. I.G.P. (1965) 2 ANLR 81 at 83 and Idakwo vs. Nigerian Army (2004) 2 NWLR (Pt. 857) P. 249 at P. 270.
Learned counsel for the respondent submitted that the learned senior counsel’s submission on this point is most erroneous and misleading as hold oneself out as illegal Chief conspicuously forms part of the component of Section 12(1) of the Chiefs Law as amended.
Section 12(1) of the Chiefs Law as amended provides thus:
“Where a vacancy has recurred in a recognized chieftaincy and no person has been approved as successor thereto by the Executive Council in accordance with this part, any person who installs or purports to installs a person as such chief or any person who holds himself out as such chief or permits to be installed as such chief shall be guilty of an offence and shall be liable on conviction to imprisonment for three years.”
A long look at the provisions of the law, stated above, are not only simple but as well devoid of ambiguity and thus should be accorded their literal or ordinary meaning. The law is trite that in interpreting a statute, its ordinary and literal meaning must be adhered to except where such adherence would produce absurdity. See the cases of Mobil Oil (Nig.) Ltd. vs. Federal Board of Inland Revenue (1977) 3 S.C. 53 and Olalere Obadare and Ors. v. The President Ibadan West District Customary Court (1964) 1 All NLR P. 336 and Claude Nabhan vs. George Nabhan (1967) 1 All NLR 47; (1967) NWLR P.130.
PW1 in this evidence before the trial Chief Magistrate testified as follows:-
“….that his clothes were removed by those who took him there and a wrapper tied round his waist the sixth and seventh accused persons brought “Ota-Oye” for him which he rested on his left shoulder the other accused persons knelt before him while the chiefs and those present paid obeisance to him. He further testified that while the people were rejoicing the second accused held and took him home.”
I am of the firm view, that based on the evidence of PW1 reproduced above, which the trial court accepted, the first appellant had evidently held himself out for the illegal installation as the Olosan of Osan, when he wore beads with “Ota-Oye” inscription and the people did obeisance to him which he acknowledged. This issue is resolved against the 1st Appellant in favour of the respondent.
Issue 3 or (c) for the 2nd to the 5th appellants is predicated on whether counts IV and V are justified. Learned Senior Counsel contended that counts IV and V are offences under Sections 69 and 70 and 249(1)(d) of the Criminal Code. The criminal offences created in Section 12 of the Chiefs Law are special Chieftaincy provisions. In law, Learned Senior Counsel submitted special provisions prevail over general (Specialia Derogant Generalibus). He relied on the cases of Tsume -vs- Peverega (2001) 2 NWLR (Part 698) P. 556 at P. 568 Para B. and Orubu v. NEC (1988) 5 NWLR (Part 94) P. 323 at P. 549, Paras E – G.
Learned Senior Counsel submitted that the offences charged against the appellants under the Chiefs Law are like the ones under sections 70 and 249 of the Criminal Code. Counts IV and V are a duplication of Count III thus putting the appellants into double tragedy and this in law, is an abuse of court processes even though all the counts are before the same court. He relied on the cases of Amaefule v. State (1988) 2 NWLR (Part 75) P. 156 at 177, Para E, Gomwalk v. Milad Plateau State (1988) 6 NWLR (Pt. 553) P. 653 at P.667 and Onuoha v. NBN (1999) 13 NWLR (Pt. 636) at P. 624, Paras E – F.
It is the contention of the learned Counsel that Sections 69, 70 and 249 of the Criminal Code cannot therefore be the same or similar or alternative to Section 12(1) of the Chiefs Law. There is nothing to show that counts IV and V were committed in public places. Learned Senior Counsel urged us to resolve this issue in favour of the Appellants.
Learned Counsel for the respondent submitted that, as rightly submitted by the learned Senior Counsel in Paragraphs N and O of his brief, the offences contained in Sections 69, 70 and 249 of the Criminal Code are not the same, similar or alternative to Section 12(1) of the Chiefs Law. Each Count of the offences charged is possessive of its distinct ingredients and thereby independent of each other and the principle of NULLUM CRIMEN SINE POENA (i.e. there should be no crime without punishment) should apply to each of the charged and proved offence instead of blanket summation of them under a single count which does not cover all the charges.
A long look at the record of proceedings of the trial court would reveal the fact that the offences contained in counts IV and V are offences committed in the pursuit and execution of unlawful purpose which in the case at hand was the illegal installation of the first appellant as the Olosan of Osan Ekiti. This to my mind constitutes an exception to the principle of special provision prevailing over general provision. There is no rule without exception (NON EST REGULA QUIN FALLET). I am of the firm view that, to concede to the submission of the learned Senior Counsel in this issue will amount to endorsing legal technicality over substantial justice which is unacceptable in law. See the cases of:
(1) Chime v. Chime (1995) 6 NWLR (Pt. 407) P. 734
(2) Okenwa v. Military Governor of Imo State (1996) 6 NWLR (Pt. 455) 394.
(3) F.M.B.N. Ltd. v. Adu (2000) 11 N.W.L.R. (Pt. 678) at 311
(4) U. T. C. Nig. Ltd. v. Pamotei (1989) 2 N.W.L.R (Pt. 103) 244.
(5) Mukadam v. Akanbi (2000) 13 NWLR (Pt.685) Page 616 at 618.
As to whether offences in counts IV and V were committed in public places, PW2, a traditional Chief, Kingmaker who holds the title of Odofin of Osan – Ekiti testified as follows:
“That all the accused persons live at Osan, he confirmed that on 13/7/98, the PWa (sic) came to inform him that the first accused was inviting people to his impending installation as the Olosan, he doubted this as the incumbent Olosan is still alive. On 5/7/98, he further testified that the PW1 came against (sic) to confirm the installation as earlier hinted, it was a Sunday, he stated that the event took place at Orogbo market and specifically “Ori-Ude” very early in the morning at about 7.00am, he confirm (sic) that many people were there when he and PW1 got there, he could recognized all the accused persons and one Rotimi Adeoye as present on their respective role.”
In the light of the evidence of PW2 quoted (supra), I find no difficulty in holding that the illegal installment of the first Appellant as Olosan of Osan, Ekiti was carried out at Orogbo market which is a public place. This issue is also resolved against the Appellants.
The next issue for determination is the validity of the judgment which was given in the absence of some of the accused persons. Learned Senior Counsel, contended that on Thursday, 20th of September, 2002 when judgment was delivered by the trial magistrate, 2nd and 7th accused persons were not in court. Learned Senior Counsel drew the attention of the Court to section 210 of the Criminal Procedure Law which provides as follows:
“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 misconduct himself by so interrupting the proceedings or otherwise as to render continence in his presence impracticable.”
Learned counsel submitted that, since the two accused persons were not in court at the time judgment was delivered, the whole proceedings are a nullity. He urged us to resolve this issue in favour of the appellants.
Learned counsel for the respondent submitted that section 210 of the CPL is not available for the asking and that it will only avail an accused person in deserving cases. If Section 210 CPL, will avail any of the appellants it can only do so in respect of the 5th Appellant on record (i.e. Ajenifari Odaba who was the seventh accused person). The 2nd accused died and the rest were in court on the day Judgment was delivered.
A closer look at Section 210 of the CPL, would leave no one in any doubt that before its provisions are invoked it must be shown in what way and manner the criminal proceedings in his absence has either prejudiced or occasioned a miscarriage of justice to him. As can be gleaned from the record, what took place when the accused person was absent in court was delivery of judgment by the trial court in which neither the prosecution nor defence had any active role to play other than listening to the court’s verdict already written before that day.
I am of the view that for the Appellants to succeed under this issue, they must not only prove that there was non-compliance with the provision of Section 210 of the CPL but also that the non-compliance substantially affected or prejudiced their interest. See the cases of Gbe v. Esewe (1988) 4 N.W.L.R. (Pt. 89) P. 435; Abibo vs. Tamuno (1999) 4 NWLR (Pt. 599) and Kudu v. Aliyu (1992) 3 N.W.L.R. (Pt. 231) P.615 at P. 634. In sum, in view of the above, this issue, like the previous issues is resolved in favour of the respondent.
Issue F for the 1st appellant relates to excessiveness of the sentence and for the other appellants, the excessiveness of sentence is discussed under issue E of the Appellants’ brief. Learned senior counsel contended that 1st Appellant was given imprisonment sentence with hard labour but hard labour is not so provided in the charge against him under Section 12(1) of the Chiefs law or Sections 70 and 249 of the Criminal Code. Maximum punishment was given to the 1st Appellant in all the counts except counts I and II. Learned Senior Counsel submitted that, as a first offender, should not have been given any maximum punishment. Learned Senior Counsel further submitted that the court could even substitute fines instead of prison sentence. He relied on the cases of Maizako vs. Superintendent General of Police (1960) WNLR, P. 188 at P. 189 and Owhole vs. Commissioner of Police (1976) NMLR P. 129 at P. 131.
Learned Senior Counsel submitted that although appellants were not given maximum sentence on count II but were sentenced to hard labour with out any option of fine. On counts IV and V, learned senior counsel further submitted that though they were not given maximum sentence, hard labour was added to the two counts. It is the contention of the learned senior counsel that appellant should not have been given any maximum punishment. The court could even substitute fines instead of prison sentence. Learned senior counsel argued that, the court did not show whether sentences and fines are cumulative or concurrent. He relied on the cases of Essien and Others v. C.O.P. (1996) 5 NWLR (Part 449) P. 489 at P. 505, Paras D – E.
Learned senior counsel, submitted that, the question for re-trial was made an issue and in the circumstance of this matter, the Appellants should not be sent back for retrial. He relied on the case of Ajayi and Others v. The State (1978) LRN p. 216 at p.265.
Learned counsel for the respondent, submitted that the appellants’ submission that imprisonment with hard labour is not provided for in the punishment section of the law is not only erroneous but misplaced in law. He relied on Section 377 of the Criminal Procedure Act. The issue of whether or not imprisonment will be with hard labour is dependent on the exercise of discretion by the trial count. Learned counsel urged us not disturb the exercise of the trial court’s discretion as same was exercised bonafide and there is no basis for its reversal.
As regards to the counsel’s contention that the Magistrate imposed maximum punishment in all the counts except I and II, learned counsel submitted that, unless specially fixed by law, the prescribed punishment means the maximum punishment and the court has unfettered discretion and latitude to give the full or maximum punishment prescribed for the offence. He relied on the case of Slap v. A.-G., Federation (1968) N.M.L.R. 326. Learned Counsel further submitted that the appellants have not shown any law that was breached by the trial court in imposing the prescribed punishment for the offences committed by the Appellant.
On the only issue formulated by the Respondent, learned counsel submitted that, relief sought by the appellants given the facts and circumstances of this case are grossly in congruous in law as the proper order to be made by this court is the order for retrial, should the court have any reason to uphold the appellants appeal and not a discharge and acquittal order as prayed.
I now consider the provision of section 377 of the Criminal Procedure Act which provides thus:
“Imprisonment subject to the express provisions of any written law providing imprisonment as a punishment for any offence, may be either with or without hard labour as the court may order and where no specific order is made the imprisonment shall be with hard labour”.
It is to be observed from the provision of the section set out above, an offence which attracts imprisonment as a form of punishment (as in this case) imprisonment is to be with hard labour unless otherwise ordered.
However, in the case of Essien vs. C.O.P. (Supra) the trial magistrate passed the following sentence;
“1 month I.H.L. each”.
Section 249, the sentencing provision, does not contain the additional sentence of I.H.L.; hence it was deleted on appeal to this court. The Section under which the Appellants were convicted does not carry the appellation I.H. L. and consistent with the decision of this court in that case (Essien) all the appellations I.H.L. are deleted hence forth in sentences dished out by the learned trial magistrate.
This is not the end of the matter. All the appellants were sentenced to various terms of imprisonment which were affirmed by the lower Court in its Appellant jurisdiction. It is not in dispute that on all the Counts but two, the Appellants, who are first offenders were sentenced to maximum terms of imprisonment as prescribed by the law under which they were tried. It is also not in dispute from the records that they were convicted and sentenced to the various terms of imprisonment on the 26/9/2002 and they were incarcerated till 28/6/2004 when they were released on bail pending appeal.
I pause a while to state at this juncture that, the purpose of punishment is to reform and not to destroy or ruin an offender. For if an individual is ruined, the larger society will be at the receiving end. I am of the considered view that the sentences handed down to the Appellants, in view of the fact that they are first offenders are excessive and I am inclined to resolve this issue in their favour.
On the whole, in the light of all I said, I resolve all the issues but one in favour of the Respondents and against the Appellants. I have said a while ago that the sentences handed down to the Appellants are excessive and being first offenders, they should not have been sentenced to the various terms of imprisonment with hard labour by the learned trial Magistrate.
I am of the firm view that having spent almost two years in prison is enough and adequate punishment for the offences they committed. It would be oppressive to send them back to jail and I so hold. I commute the prison terms to the period the Appellants had stayed in prison custody before their release on bail.
Other Citations: (2006)LCN/1963(CA)
