➥ CASE SUMMARY OF:
The State v. Andrew Yanga (SC.712/2018, 15 Jan 2021)
by Branham Chima.
➥ ISSUES RAISED
Accused present during criminal trial;
Absence of accused at the final address stage.
➥ CASE FACT/HISTORY
By a Charge dated 8/4/2014, the Respondent was charged on 14 count charges bordering on stealing and obtaining by false pretence. See pages 3-7 of the record. That the Respondent had under false pretence contrary to Section 419 and stealing contrary to Section 390(9) of the Criminal Code Law of Ogun State obtained and stole varying sums of money ranging from ₦6,489,000.00 (Six Million, Four Hundred and Eighty-Nine Thousand Naira) to ₦121,000.00 (One Hundred and Twenty One Thousand Naira) from persons within the jurisdiction of the trial Court. At the trial, out of the 8 witnesses listed, 5 testified while the Respondent gave his lone evidence. On 20/11/2015, during the trial, slated for final oral address, the Respondent was reported sick by his Counsel to the Court. However, despite the information, the trial Court directed that final oral address be taken in the absence of the Respondent against the provision of Section 210 of the Ogun State Criminal Procedure Law, 2006. See page 71 of the record. Judgment was delivered on 1/12/2015, wherein the Respondent was convicted and sentenced to 7 years imprisonment. Dissatisfied, the Respondent appealed to the lower Court, Ibadan Division, which set aside the trial Court’s judgment, quashed the conviction and sentence of the Respondent. Miffed, the Appellant has now appealed against the judgment of the lower Court
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the learned Justices of the Court of Appeal, Ibadan division were right when they held that the absence (intentional) of the accused person in Court on a date meant for Counsel addresses vitiated the entire proceedings?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The absence of the accused in the final address stage vitiated the proceedings).
[THE FINAL ADDRESS PART WAS TAKEN WITHOUT THE ACCUSED PRESENT
‘The proceedings of 20/11/2015 having been fundamentally flawed on account of the trial Court’s failure to adhere to this law and the rule of natural justice of the Respondent’s right to fair hearing jeopardized and marred the proceedings since written/oral address or Counsel’s address is part and parcel of the trial of the Respondent, whose presence is required throughout until judgment. “It is an essential principle of criminal law and practice in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused…” See STATE v. LAWAL (2013) 7 NWLR (PT.1354) AT PP.586.’
‘The address stage having taken place, in the absence of the Respondent on 20/11/2015, without granting an adjournment even on the compassionate ground and reason that the Respondent was absent because he lost his wife and child; was disastrous to the whole proceedings. The trial Court having known about the necessity of the presence of an accused person throughout his trial ought to have treated his absence on 20/11/2010 with kid gloves and grant an adjournment until the presence of the Respondent was secured or possibly revoke his bail and issue a bench warrant against him. Per OGUNDARE, JSC in ADEOYE v. STATE (1999) LPELR-134 (SC) (PP. 8-9, PARAS D-F) harped the point that “It is not part of our criminal jurisprudence to try a defendant in absentia. Section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in Sections 100 and 223 of the Act.” Having emphasized that address of Counsel or written/oral address is part of the trial of the Respondent, which was done in his absence; the proceeding is bound to suffer a major setback.’
‘For the trial Court to have continued with the proceedings of 20/11/2015 in the absence of the Respondent was to invoke upon itself a grave blunder. In STATE v. LAWAL (2013) 7 NWLR (PT.1354) AT PP.585, this Honourable Court in considering Section 210 of the Oyo State Criminal Procedure Law, similar with Section 210 of the Criminal Procedure Act held strongly that “proceeding with the trial of the appellants in the absence of one of them constituted a serious breach of the law.” Thus, a judgment which is given without compliance with rules of Court and which non-compliance has breached a fundamental human right such as the right to fair hearing, is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See the dissenting view of Per NIKI TOBI, JSC in BARR. (MRS.) AMANDA PETERS PAM and ANOR v. NASIRU MOHAMMED and ANOR (2008) LPELR-2895(SC) (P. 71, PARAS. E-A). Furthermore, Per Tobi, JSC in EJEKA v. STATE (2003) LPELR-1061(SC) (P. 18, PARAS. A-C), on the effect of mistake of Judges in a criminal trial and its consequences, held that a mistake made by a Judge in a criminal trial can vitiate the proceedings and result in acquittal of the accused if the mistake is so fundamental to the trial to the extent that it has caused injustice to the accused person. The case of STATE v. LAWAL (2013) 7 NWLR (PT.1354) @ PP.565, being a decision of this Apex Court must be followed since the principle of criminal trial in the absence of the accused person was the stare decisis or precedent laid down by this Court, ought to have been followed by the trial Court. To attempt any distinction when the principle is clear is an invitation of wrath. Therefore, stare decisis presupposes that the law has been solemnly declared and determined in the former case. It thus precludes the Judge of the subordinate Court from changing what has been determined. In other words, they should keep the scale of justice even and steady not liable to waiver with every Judge’s opinion. See Per ONU, JSC in ADESOKAN and ORS v. ADETUNJI and ORS (1994) LPELR- 152 (SC) (P. 56, PARAS. A-F).’]
‘I must declare therefore that, the remedial benefit enjoyable by the Respondent is the nullification of his trial and proceedings by the trial Court and an order of discharge and acquittal. Similarly, the learned Justices of the Court of Appeal, Ibadan Division, were right when they held that the decision in STATE v. LAWAL (2013} 7 NWLR (PT.1354) @ PP. 565 was on all fours with the circumstances in this case to vitiate the proceedings of 20/11/2015 conducted in the absence of the Respondent. The appeal is hereby dismissed and the judgment of the lower Court is affirmed.’
➥ FURTHER DICTA:
⦿ CRIMINAL TRIAL IS FROM ARRAIGNMENT TO CONVICTION; THE FINAL ADDRESS IS PART OF THE TRIAL
I make haste to state here that the criminal trial of every accused person begins with arraignment and culminates with conviction and sentence in judgment. In the precedent relied upon by the Respondent’s learned Counsel, STATE v. LAWAL (2013) 7 NWLR (FT. 1354) AT PP.586, Mohammad, JSC, defined criminal trial to mean “the whole of the proceedings including the judgment and sentence” This therefore has been the constitutionally inalienable right enjoyed by every accused person. It is the Respondent’s constitutional right to be heard through his written/oral address or Counsel’s address on his behalf. Section 294(1) of the 1999 Constitution (as amended) contemplated written address or Counsel’s address to be part of the criminal trial or proceedings, when it provides that: Section 294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. Per NNAEMEKA-AGU, JSC in NDU v. STATE (1990) LPELR-1975(SC) (P. 45, PARAS. A-C) relying on Obodo v. Olomu and Anor (1987) 3 N.W.L.R. (Pt.59) 111, at p. 123-124, re-iterated this point thus: …this Court has stated before, the addresses of Counsel are an essential part of the trial. That can be the only possible inference from the fact that the constitution itself used the conclusion of addresses as a very important determinant of the time limit for delivery of judgments under Section 258 of the Constitution of 1979. See also STATE v. LAWAL (2013) 7 NWLR (PT. 1354) AT PP.585, wherein this Honourable Court held that “addresses by parties or their Counsel are an integral part of the hearing or trial of an accused person.” — U.M. Abba Aji, JSC.
⦿ ESSENCE OF AN ACCUSED BEING PRESENT AT HIS CRIMINAL TRIAL
The trial Court having conducted the proceedings of 20/11/2015 in the absence of the Respondent jumped the guns and breached his constitutional right. The essence of the presence of an accused throughout his trial is to afford him an adequate opportunity to play his statutory role and liberty to respond at every stage of the proceedings personally or through a legal practitioner of his own choice for the purpose of ensuring fair hearing. — U.M. Abba Aji, JSC.
⦿ FAIR HEARING IS TRIAL ACCORDING TO ALL LEGAL RULES
The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alterem partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Per PETER-ODILI, JSC in EYE v. FRN (2018) LPELR-43599(SC) (P. 28-30, PARA. A). — U.M. Abba Aji, JSC.
⦿ ‘STARE DECISIS’ IS TO STAND BY THINGS DECIDED
This appeal illustrates the fundamental importance of the principle of stare decisis in our jurisprudence. “Stare decisis” is defined in Black’s Law Dictionary, 8th Edition, at Page 1443 thus: “to stand by things decided. The doctrine of precedent under which it is necessary for a Court to follow earlier judicial decisions when the same points arise again in litigation. ….. “The rule of adherence to judicial precedent finds its expression in the doctrine of stare decisis. The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases. ….” It is settled law that for the doctrine to apply, the facts of the two cases must be the same or similar. The adherence to precedent provides for certainty of the law. See: Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Mailantarki v. Tongo (2017) 5 – 6 SC (Pt. II) 132; University of Lagos v. Olaniyan (1985) LPELR – 3419 (SC) @ 26 C – F. — K.M.O. Kekere-Ekun, JSC.
⦿ THE CONSTITUTIONAL RIGHT TO FINAL ADDRESS
My Lords, I had the opportunity of addressing this type of anomaly in Kalu v. State (2017) LPELR – 42101 (SC). Speaking for this Court, I held that: “… 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  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. Lemminkainen 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 judgement, 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  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…” [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 Fisko 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 (pt 88) 296, 305-306. [per Nweze, JSC in Kalu v. State (supra) 9 et seq]. — Chima Centus Nweze, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.S.C.
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 210 of the Criminal Procedure Law, Ogun State, (pari materia with Section 210 of the Criminal Procedure Act) provides that: Every accused person shall subject to the provisions of Section 100 and of Subsection (2) of Section 223, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)