➥ CASE SUMMARY OF:
Onuwa Kalu v. The State (SC.474/2011, 13 Apr 2017)
by Branham Chima.
➥ ISSUES RAISED
Whether retrial where trial proceeding void;
➥ CASE FACT/HISTORY
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 R11, 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.
The grouse of the appellant 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.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether having found that the accused was denied fair hearing by the nonallowance to adopt brief of argument, the Court of Appeal ought to dismiss the case, and not to resend the matter for retrial?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[ONCE THERE IS A DENIAL OF FAIR HEARING THE APPROPRIATE ORDER IS FOR REHEARING
‘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  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  12 NWLR (Pt. 58) 587; Salu v. Egbeibon (1994) 6 NWLR (Pt. 348) 23; Danladi v. Danladi (2014) LPELR-24020 (SC) 58; C-E.’
THE APPELLANT WAS DENIED FAIR HEARING BY THE TRIAL COURT
‘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  NWLR (Pt. 58) 587; Obaro v. Hassan (2013) LPELR-20089 (SC) 32-33; E-B; Tunbi v. Opawole  2 NWLR (Pt. 644) 275.’
‘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.’
THE PROPER ORDER WAS A RETRIAL; DISCHARGED AND ACQUITTAL CANNOT ARISE FROM A NULL JUDGEMENT
‘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 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 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.’
THE PROPER ORDER IS A RETRIAL
‘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 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.’]
‘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 expeditious hearing and determination. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ FAIR HEARING APPLIES FROM THE BEGINNING TO THE END OF THE TRIAL
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, 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. — C.C. Nweze JSC.
⦿ THE RIGHT TO FINAL ADDRESS IS PROTECTED BY THE CONSTITUTION
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  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. 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 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…” — C.C. Nweze JSC.
⦿ FAILURE TO FILE REPLY BRIEF MAY BE DEEMED ACCEPTANCE OF NEW POINTS RAISED
Although it is not mandatory for an appellant to file a 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. — C.C. Nweze JSC.
⦿ CIRCUMSTANCE WHERE RETRIAL WILL BE ORDERED
The Supreme Court has in multiplicity of its decided authorities laid down some conditions which must be considered, before retrial order of cases can be made. These conditions though by no means exhaustive, includes the followings:- (a) That there had been such an error in law or an irregularity in procedure which renders the trial a nullity nor makes it possible for that appeal Court to say that there has been no miscarriage of justice; (b) That besides the error or flaw or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused person; (c) That there are no special or exceptional circumstances which would make it unjust to put the accused on trial a second time; (d) The offences on which the accused faced trial have very serious consequences; (e) That the refusal to order retrial would occasion greater injustice than to grant or order such retrial order. See the cases of Abodundu v. Queen (1959) 4 FSC 70; Mr. David Odetayo v. Mr. Michael Bamidele (2007) 5 SC 72; Cypiacus Nnadozie and Ors v. Nze Ogbunelu Mbagwu  1 SC (pt.II) 43; Edibo v. The State (2007) All FWLR (Pt. 384) 192 at 229. — Sanusi JSC.
⦿ DISCHARGING AND ACQUITTING THE ACCUSED BECAUSE OF TRIAL NULLITY WILL BE ENTRENCHING TECHNICALITY
Let me stress here, My noble Lords, that Chief Mike Ahamba SAN, holds the view that the Court below ought to have discharged and acquitted his client, the appellant in the circumstance. It is my view that to do what he prayed for would to my mind amount to calling upon Court below or even this Court to learn towards technicalities, rather than doing substantial justice. This Apex Court had for quite a long time shifted its ground by the quest of doing substantial justice instead of allowing sheer technicalities to bear in its decisions. All other Courts in this country have since been following such trend as clearly manifested in the majority decision of the Court below in this instance case which approach truly speaking, highly commendable. — Sanusi JSC.
⦿ THE COURT IS TO CONSIDER DEFENCES FOR THE ACCUSED
In criminal trial, not only must the defences of the accused be considered, the Court is bound to consider the defences available to the accused which the accused himself did not raise, especially where the accused is facing a trial in which his life is at stake. See Nwankwoala v. The State (2006) 14 NWLR (Pt. 1000) 663; Adebayo v. The Republic (1962) NWLR 391; Akpabio v. The State (1994) 7 NWLR (Pt. 359) 653; Oguntolu v. The State (1996) 2 NWLR (Pt. 432) 503; Malam Zakari Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641 at 679 and 681. — P.A. Galinje JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, JSC
⦿ FOR THE APPELLANT(S)
Chief Ahamba, SAN.
⦿ FOR THE RESPONDENT(S)
M.O. Nlemedim, the Honourable Attorney General and Commissioner for Justice, Imo State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)