Appeal Court’s Decision That Occasions A Miscarriage Of Justice Is Also Perverse

It is trite that the Supreme Court will hardly interfere with concurrent findings of the lower courts. This position was reiterated by EKO, J.S.C, in his own contribution in this judgment recently delivered by the Supreme Court, when he said “This Court, as a policy, is loathe to intervene and interfere with the concurrent findings of fact made by the trial and intermediate Courts. The exception is, inter alia, when the concurrent findings are perverse.”

SANUSI, J.S.C. in his leading judgment held that “The learned Justices of the lower Court in my view are/were wrong in affirming the decision of the trial Court when it held that the latter was right in applying the provisions of Section 216 and Section 217 of CPC to convict the appellant without a formal charge framed against him. Such finding is, in my considered view, perverse and erroneous.”

In shedding light on where the decision of court would be regarded as perverse, EKO, J.S.C said “The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration.” He went further to say that “When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse”.

BRIEF FACTS OF THE CASE

In summary, the facts of the case are that the appellant herein and five others were charged before the trial High Court sitting in Otukpo and tried on five counts recapitulated as follows:

A. Offences allegedly committed on 18th October, 2001 at Achigili Street, Otukpo-

1. Conspiracy to commit robbery;

2. Robbing Salisu Mohammed (Pw.3) of the sum of N10,000.00;

3. shooting and injuring Salisu Mohammed (PW.3) in the course of robbing him.

B. Offences allegedly committed on 9th September, 2001 at Otia F, Igbanonmaje, Otukpo

4. Robbing Adakole Ogale (PW. 1) of N3,500.00 at gun point; and

5. Robbing Stephen Ichakpa (Pw.2) of N6,000.00 at gunpoint.

All the accused persons pleaded not guilty to each of the five counts. In the course of the trial, three of the accused were discharged on a no-case submission, leaving Olarewaju Akogwu, Mathias Garuba Idoko and the appellant who was the 3rd accused. They were eventually discharged and acquitted in respect of counts 1, 2 and 3. The trial Court, relying on the accused persons’ extra judicial statement, ruled that the appellant and two other co-accused had a case to answer, as prima facie case was made against them on counts 4 and 5. At the conclusion of the trial, the trial judge, while delivering his judgment, invoked the provisions of Section 216 and 217 of the Criminal Procedure Code (CPC) to the effect that a trial Court has the power to convict an accused for any offence disclosed by evidence even though not specifically charged with it. The appellant was subsequently found guilty, convicted and sentenced for conspiracy to commit armed robbery, an offence for which they were not charged.

Riled by the decision of the trial Court, the appellant herein, appealed to the Court of Appeal, Makurdi Division but his appeal was dismissed by the Court. Still dissatisfied, the appellant has now appealed to the Supreme Court.

ISSUE(S) FOR DETERMINATION

The issues for determination as distilled by the Court for the just determination of the appeal are:

1. Whether in the circumstances of this case it was proper to convict the appellant to conspiracy (sic) to commit armed robbery proffered against the appellant.

2. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt as required by law?

HELD

The Court unanimously held the appeal to be meritorious and accordingly, same was allowed. As a corollary, the conviction and sentence passed on the appellant by the trial Court which was affirmed by the lower Court was set aside. Appellant was consequently discharged and acquitted.

RATIO DECIDENDI

• CONSTITUTIONAL LAW – SUPREMACY OF THE CONSTITUTION: Effect of any Law or Act that is inconsistent with the Constitution

“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section one, made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. Ondo State vs AG of the Federation and Ors (2002)9 NWLR (pt 772) 226.”Per SANUSI, J.S.C. (P. 23, Paras. B-D

• CONSTITUTIONAL LAW – RIGHT OF AN ACCUSED PERSON: Right of an accused person to be informed of the nature of the offence with which he is charged

“By the provisions of Section 36 (6) (a) of the 1999 Constitution as amended, reproduced supra, any person charged with a criminal offence must be informed promptly and in detail, the nature of the offence he is charged with or accused of committing in the language he understands. It seems to me that by the provisions of Section 36 (6) (a), the Constitution has decreed that a formal charge has to be framed which also must be read to the accused person in the language he understands, as well as the details of the nature of the offence. The trial Court must also be certain that the accused has not been misled in his defence. The invocation of the provisions of Section 216 and Section 217 of Criminal Procedure Code to convict the present appellant of the offence of criminal conspiracy to commit armed robbery by the learned trial Judge without a formal charge framed in the circumstance, is a total breach of the constitutional provisions mentioned above.” Per SANUSI, J.S.C. (Pp. 23-24, Paras. E-C)

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF CONSPIRACY: Circumstance that would make a party guilty of the offence of conspiracy

“Conspiracy to commit an offence is a separate and distinct offence independent of the actual offence to which the conspiracy is related. The actual commission of the offence is not necessary to secure a conviction for conspiracy. The bare agreement to commit the offence is sufficient. See: Okemefune Ndozie Vs The State (2016) LPELR- 26067 (SC) @ 14-15 D-A; Sule Vs The State (2009) 17 NWLR (Pt. 1169) 33; Ikemson Vs The State (1989) 3 NWLR (Pt. 110) 455 @ 467-468.”Per KEKERE-EKUN, J.S.C. (Pp. 46-47, Paras. F-B)

• CRIMINAL LAW AND PROCEDURE – DOUBT: Whether doubt in a criminal trial must be resolved in favour of the accused

“The elementary rule in our adversarial jurisprudence or in the administration of criminal justice is; where there exists any doubt in the case of the prosecution, such doubt must be resolved in favour of the accused person. See IGABELE v. THE STATE (2006) 6 NWLR (PT.975) 100 at 127.” Per EKO, J.S.C. (Pp. 54-55, Paras. E-A)

• EVIDENCE – PROOF: Ways of proving the commission of a crime

“It is settled law; that there are three methods for proving an offence by the prosecution in order to obtain conviction. These three methods of proof are as follows:- (a) By the testimony or testimonies of eye witness or witnesses. (b) Through voluntary confessional statement of an accused Person (c) Through circumstantial evidence.

• EVIDENCE – CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person

“For a confessional statement to ground a conviction, it must be voluntarily made, positive and unequivocal. It must state or suggest the inference that he committed the crime. See: Section 28 of the Evidence Act 2011; Ikemson Vs The State (supra); Agboola vs The State (2013) LPELR- 20652 (SC) @ 50 E-F; Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31 @ 70.”Per KEKEREEKUN, J.S.C. (P. 48, Paras. A-C)

• JUDGMENT AND ORDER – PERVERSE DECISION: Instances where the decision of court would be regarded as perverse

“The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE v. SHORUN (1985) NWLR (pt.2)360. When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR v. IBRAHIM (1975) 5 SC 55; IROLO v. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN v. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C. (P. 57, Paras. C-F)

OTHER NOTABLE JUDGMENTS FROM THE COURT

ANIYANGHAN & ORS v. SEIYABAKORU & ORS (2017) LPELR-43383(CA)

• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Proper order the Court will make where there is a denial of fair hearing

“The law, as settled by many decisions of the Supreme Court, is that where there is a denial of a party’s right to fair hearing, the appropriate order to make, on appeal, is an order for re-hearing or retrial. See Otapo v. Sumonu (1987) 12 NWLR (Pt. 58) 587; Rasaki Salu v. Madam Towuro Egeibon (1994) 6 NWLR (Pt. 348) 23; Alhaji Sani Abubakar Danladi v. Barr. Nasiru Audu Dangiri & 6 Ors. (2015) 2 NWLR (Pt. 1442) 124 and Onuwa Kalu v. State (2017) 14 NWLR (Pt. 1586) 523 at 547, per Nweze, JSC.”Per ADUMEIN, J.C.A. (P. 22, Paras. B-D)

• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal

“It is settled law that where there is a preliminary objection to an appeal, the objection must first be heard and resolved. Even where, for the sake of convenience, the preliminary objection is heard or taken along the appeal, the practice, as recognised by law, is that the preliminary objection should be first determined to enable the Court to know the next course of action to take in the matter. See G.E.N. Onyekwuluje v. G. B. Animashaun & Anor. (1996) 3 NWLR (Pt. 439) 637; Godwin v. C.A.C (1998) 14 NWLR (Pt. 584) 162 and The Shell Petroleum Development Co. of Nig. Ltd. & 2 Ors. v. Chief Isaac Osaro Agbara & 4 Ors. (2016) 2 NWLR (Pt. 1496) 353.”Per ADUMEIN, J.C.A. (Pp. 6-7, Paras. E-B)

• PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESS(ES): Effect of failure to serve Court process(es)

“It is now settled law that failure to effect service, where service is required, is an issue which permeates the jurisdictional competence of the Court to hear the action or case. See New Nigerian Newspapers v. Oteh (1992) 4 NWLR (Pt. 273) 626; Julius Berger (Nig.) Ltd. v. Friday Femi (1993) 5 NWLR (Pt.295) 612; Okoroafor Mbadinuju & 3 Ors. v. Chukwunyere Ezuka & 5 Ors. (1994) 8 NWLR (Pt. 364) 5 and Mohammed Mari Kida v. A.D. Ogunmola (2006) 13 NWLR (Pt. 997) 377 at 396, per Katsina-Alu, JSC (as he then was).”Per ADUMEIN, J.C.A. (P. 8, Paras. B-E)

• PRACTICE AND PROCEDURE – HEARING NOTICE: Effect of failure to serve hearing notice where same is required

“This issue here is not whether the appellants were persistently absent from Court but whether they were served with a hearing notice. In the case of Augustine Bassey Ene v. Chief Asuquo & Anor. (2011) All FWLR (Pt. 553) 1907 at 1939 this Court per Orji-Abadna, JCA stated, inter alia, as follows:

“…….where parties are repeatedly absent in Court, the only procedure to take is to issue a hearing notice.”

I have read the ruling of the trial Ughelli North Area Customary Court refusing to set aside its default judgment. I have also read the judgment of the lower Court upholding the decision of the trial Area Customary Court. In both decisions, that is those of the Area Customary Court and the High Court of Delta State sitting in its appellate jurisdiction, it was no where stated that the appellants were served with any hearing notice before the trial Area Customary Court heard the respondents on their claims, in the absence of the appellants and delivered judgment against them.

All that both lower Courts relied on in refusing to set aside the default judgment was that, it was “not shown that the Warri Crisis extended to when the judgment was entered on 12/10/98. This application was filed on 26/1/99” and that the appellants did not act “timeously” by “waiting for almost 4 months after judgment before applying to set same aside”. See page 124 of the record of appeal and pages 9-10 of the judgment of the lower Court.

I think that having regard to the facts of the case, as ably demonstrated by the learned counsel for the respondents, the trial Area Customary Court ought to have fulfilled all procedural legal requirements by issuing and serving on the appellants a hearing notice, informing them that the respondents’ case or claim would be heard on the date(s) specified in the hearing notice.

By failing to issue and serve a hearing notice on the appellants, the trial Court was in breach of the appellants’ right to fair hearing, as enshrined and guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is an indispensable requirement of justice that for a Court to be fair and just, the Court must hear both sides to a cause or matter by giving them ample opportunity to present their cases. See Godwin Ekiyor & Anor. v. Chief Frukama Bomor (1997) 9 NWLR (Pt. 519) 1 and Simon Ezechukwu & Anor. v. I.O.C. Onwuka (2006) 2 NWLR (Pt. 963) 151.

As stated earlier, the appellants were entitled to be served with a hearing notice, but there is nothing on record that they were indeed served. The failure by the trial Court to issue and serve a hearing notice on the appellants is not a trivial matter of mere irregularity but a fundamental flaw which renders the proceedings of the trial Area Customary Court a nullity. See Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1 at 15, per Uwais, JSC (as he then was).

I agree with the submission of learned counsel for the respondents that a Court of law ought not to over indulge a party before it. I wish to add, also, that it is settled law that a party who indulges in delays cannot complain of denial of right to fair hearing. See Mohammed v. Kano Native Authority (1968) 1 All NLR 424; Nathaniel Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Sunday Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333; and Effiong Asuquo Otu & 3 Ors. v. Okokon Effiong Udonwa (2000) 13 NWLR (Pt. 683) 157. Recently, the Supreme Court in the case of Darlington Eze v. Federal Republic of Nigeria (2017) 15 NWLR (Pt. 1589) 433 at 478, per I.T.

Muhammad, JSC; stated that:

“It is the law that if a party (a counsel in this case) is embarking on dilatory or delay tactics, the Court can lawfully stop him in his tracks and take action against his interest without flouting the provisions of Section 36(1) of the Constitution. Also, any person who unduly and deliberately delays the proceedings of the Court will have himself to blame if the Court takes any adverse decision against him based on such unnecessary delay.”

In this case, therefore, if the appellants had been given a hearing notice, informing them that the case would be heard on 28/05/1998, then no Court would have listened to them complaining that their right to fair hearing had been breached because in such circumstance the appellants would be guilty of indulging in deliberate and undue delays. While the saying is true that “Justice delayed is justice denied”; it is also true that “Justice rushed is justice crushed” – per Lord Hope (Accra, Ghana, 2005). In this case, the trial Area Customary Court crushed justice by rushing to hear only the respondents, without issuing an ordinary but fundamental hearing notice to the appellants.”Per ADUMEIN, J.C.A. (Pp. 18-22, Paras. A-A)

OHANUGO v. SOUTH AFRICAN AIRWAYS(2017) LPELR-43432(CA)

• APPEAL – ISSUE(S) FOR DETERMINATION: Effect of an issue for determination not arising or relating to any ground of appeal

“It is a trite principle of law that all issues for determination raised by the parties to an appeal must arise from the Grounds of Appeal ensconced in the Notice of Appeal and that failure in this regard could lead to the striking out of the defaulting issue(s). See: IWUOHA & ANOR V. NIPOST LTD. & ANOR (2003) LPELR-1569(SC) GWEDE V. INEC & ORS (2014) LPELR-23763(SC); and FAFIYEBI & ANOR V. ADEBISI & ANOR (2014) LPELR-23787(CA).”Per TUKUR, J.C.A. (P. 7, Paras. C-E)

• CONTRACT – BREACH OF CONTRACT: Duty on a plaintiff to prove actual loss in an action for breach of contract

“It is settled beyond controversy that a properly formed contract is a legally binding agreement, having terms that the Court is willing and able to enforce against the parties. One of the ways in which the Court seeks to protect the sanity of contracts is vide the award of damages in deserving circumstances for breach of a term contained in a legally binding agreement. See: BEST NIGERIA LTD. v. BLACKWOOD HODGE NIGERIA LTD. (2011) LPELR-776(SC); ENWELU v. GIUMEX INVESTMENT LTD (2017) LPELR-42777(CA); and EMESPO J. CONTINENTAL LTD & ANOR v. AUTOMOTOR FRANCE S.A (2016) LPELR-42232(CA).

Notwithstanding the above general principle of law, it must be clearly stated that it is not in every circumstances where breach of a term contract occurs that it can be said that damage necessitating the award of damages has occurred. The above was what this Court was driving at in the case of MALIK v. KADURA FURNITURE & CARPETS CO. LTD (2016) LPELR-41308(CA) per ABIRU JCA (Pp. 22-23, Paras. F-B), where he held thus:

“Now, a breach of contract is said to be committed when a party, without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or performs the obligation defectively or incapacitates himself from performing the contract or by wrongful repudiating the contract.”

See: BEST NIGERIA LTD. V. BLACKWOOD HODGE NIGERIA LTD. (2011) LPELR-776(SC); AFOLABI V. GOV OF OYO STATE & ORS (2016) LPELR-41945(CA).

An application of the above definition to the facts of this appeal, would reveal that there has been no breach of terms necessitating the award of damages by the Respondent. The crucial term of the contract between the parties in this appeal, is that the Appellant be taken to South Africa by flight, which was done by the Respondent, albeit a day late. It then behoves on the Appellant to establish by cogent evidence that he suffered real and actual damage by the actions of the Respondent, which entitles him to the award of damages. The trial Court was not convinced of this alleged fact, neither is this Court. The rule of evidence remains: He who asserts must prove. See: DIAMOND BANK LTD v. PAMOB WEST-AFRICA (2014) LPELR-24337(CA); INTERCONTINENTAL BANK LTD v. BRIFINA LTD (2012) LPELR-9717(SC); ONOSIGHO v. GLO & ANOR (2016) LPELR-40496(CA).”Per TUKUR, J.C.A. (Pp. 16-18, Paras. B-B)

• CONTRACT – TERMS OF CONTRACT: Whether parties are free to negotiate the terms of their relationship in a contract

“Parties to a contract, are at times, at liberty and free to alter, review, amend or change the terms of their agreement and once the new terms are freely accepted and performed by them, to conclusion, the issue breach would clearly be an afterthought. Oneh v. Obi (1999) 7 NWLR (611) 487; Nwobi v. Anukam (2001) 14 NWLR, 38.”Per GARBA, J.C.A. (P. 19, Paras. D-E)

• COURT – DUTY OF COURT: Whether a Court must consider all the issues framed

“In any event I am mindful of the fact that the Court is not bound to consider all the issues formulated by the Appellant or indeed all the parties in the Appeal once a single issue can dispose of the Appeal completely. See Postmaster General & Ors vs. Maccajetan Agbaji 2006 LPELR 11926 CA.”Per TUKUR, J.C.A. (P. 8, Paras. C-D)

EHI (NIG.) LTD & ANOR v. MOMODU(2017) LPELR-43387(CA)

• APPEAL- UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court

“In its sixty-two (62) page judgment, the trial Court, while dismissing most of the respondent’s monetary claims, found and held that the respondent “appeared at least 16 times on behalf of the 1st defendant at the Federal High Court”. See page 149 of the record of appeal. The appellants did not appeal against this finding of fact and, in the eyes of the law, they are deemed to have accepted this finding to be true and correct. See Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Standard (Nigeria) Engineering Co. Ltd. v. Nigerian Bank for Commerce and Industry (2006) 43 WRN 47; Madam Adunola Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt.1421) 252 and Wike Ezenkwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71.”Per ADUMEIN, J.C.A. (P. 7, Paras. B-F)

• APPEAL- ISSUE(S) FOR DETERMINATION: Whether issues must be formulated from grounds of appeal

“…As can be seen from the appellants’ grounds of appeal, reproduced above, the appellants’ subsidiary issue and the sole issue identified by the respondent do not arise from the grounds of appeal. The subsidiary issue framed by the appellants and the respondent’s solitary issue are incompetent and they are hereby struck out. The law is trite that an issue for determination must flow from the grounds of appeal. See Attorney-General, Bendel State & 2 Ors. v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646 and Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175.”Per ADUMEIN, J.C.A. (Pp. 4-5, Paras. E-A)

Culled: lawpavilion.com>]]>