A common feature of indigenous African societies is the periodic gathering of spokespersons in the community. This gathering is made up of prominent individuals in the society. These so-called prominent individuals are, more times than not, the elderly men and stakeholders among the clan or kinsmen.
This system was employed by different indigenous groups, from the northerners to the westerners, and to every other part of the continent. To an extent, it is still being used in some communities as a means of making important decisions, or as a means of alternative dispute resolution. Although, this means has been criticized as being gender discriminatory (as ladies are seldom given entrance or an opportunity to voice opinions in such a gathering), it is still lauded as being in consonance with the tradition and customs of the African society.
On the 27th December, 1994, at New Ekuri village, a prominent chief played host to a gathering with other chiefs to deliberate on some essential matters in daytime. The gathering was disrupted when the six appellants, and others unaccounted for, barged into the compound, fully armed, and started taking the items initially prepared as refreshments for the small gathering. The son of the host, Mbel Otey, sustained injuries as he tried to stop the perpetrators from carrying on their activities. The matter was reported to the police and the alleged perpetrators were charged to court.
HISTORY OF THE CASE
Name of the Court: Chief Magistrate Court, Akamkpa, Cross-River State
Name of Chief Magistrate: His Worship M. O. Eneji
Date of Ruling: 6th June, 1996.
After a case was filed against the defendants by Chief Otey Esira, whom had hosted the gathering at his abode, the case proceeded to court and the defendants, herein the appellant, were charged and arraigned on a four-count charge of conspiracy, house breaking, stealing and assault at variance with sections 518(6), 411(1), 390(9) and 351 of the Criminal Code, Cap. 31, Vol. 2, Laws of Cross-River State, 1983 respectively.
The appellants had decided on a summary trial, to speed up the process, and had pled not guilty to each count. Sergeant Edet Asuquo, the prosecuting Police Officer, tendered four witnesses for the prosecution, whose testimonies were duly probed by the learned counsel for the defendants [herein the appellants]. At the end of the case for the prosecution, dated 30th March, 1996, the case was adjourned for a “No Case” submission by the counsel for the appellants. Accordingly, when the record of proceedings in the Chief’s Magistrate Court was scrutinized, the statement which the counsel for the defendants intended to hinge his case upon was found to have multiple defects and was heavily disputed.
The learned counsel for the defendants proffered that, even with all the claims the prosecution had labelled against the defendants, the prosecution still had not brought forth a substantial evidence to back up the several offences they had been charged with. The next day, 6th June, 1996, the court had apparently rounded up its deliberations and carefully polished its verdict, because the Chief Magistrate found them guilty on every count but the second, and slammed them(royally) with two options; either they produce all the items they had ‘moved’ or they serve a two-year imprisonment sentence. Among the contentions by the appellant was that, the record of proceeding tendered by the lower court was a hoax, as the magistrate had written and rewritten the judgement after being intimidated by the counsel for the respondent, and that when the judge had delivered its final judgement, the pronouncement had lasted barely two minutes.
Name of Court: Calabar High Court
Name of Justice: Binang, J
Date of Ruling: 15th March, 1997.
The defendants were aggrieved by the ruling of the Magistrate court and on the 24th June, 1996, they appealed to the High Court holden at Calabar. On the 26th June, 1996, the 3rd appellant, Chief Edwin Ogar, swore to a 14-paragraph affidavit challenging the correctness of the record of the proceedings dated 6th June, 1996. The appeal was finally heard on the 15th March, 1997, and the court affirmed the convictions of the appellants but varied the sentences delivered by the trial court.
Name of Court: Court of Appeal, Holden at Calabar, Cross-River State.
Name of Justice: Dennis Onyejife Edozie [Presided and Read the Leading Judgement]; Okwuchukwu Opene; Simeon Osuji Ekpe.
Date of Ruling: Monday, 4th February, 2002.
Suit No.: CA/C/59/99.
The appellants were still peeved with the judgment of the magistrate court, which was upheld by the High Court, and lodged an appeal to the Court of Appeal, predicated on seven grounds from both the appellants and the defendants. Each brief, from the appellant and defendant, contained three issues for determination.
In the appellant’s brief, the issues adopted for determination included;
- Whether the lower court was right in upholding the judgment of the trial court when the authenticity of the record of its proceedings were challenged, widely disputed, and had not been resolved.
- Whether the lower court was right in affirming the Chief Magistrate’s jurisdiction over the claims placed before it against the appellants.
- Whether the lower court was right in sustaining the conviction of the appellants when the procedure adopted by the trial Chief Magistrate had wrongfully denied them fair hearing.
In the respondent’s brief, the following issues were formulated for determination;
- Whether the lower court had properly proved the legitimacy of the record of proceedings of the trial court.
- Whether the trial court had sufficient jurisdiction to try the appellants in the instant case
- Whether the procedure adopted by the trial court delivering the final judgement after the learned counsel for the accused persons relied on his no case submission was proper.
The first issues filed in the appellant’s and the defendant’s brief bordered on the authenticity of the record of proceedings from the trial court. So, basically the question being asked is, if the High court was correct in going ahead to give a decision, or if the high court did not make a mistake when it balanced its judgement on a document which had fell under scrutiny by the appellant, and had been found to be full of defects, something which ordinarily would have rendered the said documents ineffectual?
To buttress its point and to lay more emphasis on the purported ineffectuality of the record of proceedings, the appellant referred to in its brief of argument, the 14-paragraph affidavit which had been sworn to by the 3rd appellant and to a passage in the judgement of the High Court, in which it disapproved of the affidavit in question, after several comments on the lack of ‘affidavit of service’ of the affidavit on the learned trial judge.
It referred to Order 9 rule 6 of the High Court (Civil Procedure) Rule which provides that, when a process is filed challenging a particular record, that process cannot be validated until it is duly received by the other party. It was then resolved that; since the affidavit, sworn to by the third appellant, had been duly dispatched to the Registry of the trial Chief Magistrates Court and formed part of its compiled record, the proof of service of the affidavit on the learned trial Chief Magistrate was not necessary.
It was decided that the appellant had followed the right route in challenging the credibility of the record of the proceedings, and that the lack of a counter affidavit or even a response by neither the trial judge nor the registrar, it was deemed that the accusations had been admitted.
The second issues raised for determination by both parties to the case skirted on the jurisdictional power of the magistrate court over the issues presented to it. The counsel for the appellants blasted full on in discrediting the trial court with a plethora of cases for reference and a reference to the Magistrate’s Court Law. He submitted that by virtue of the Magistrate’s Court Law, the jurisdiction of the Chief Magistrate was limited to the following offences; burglary, house breaking, stealing of a property not exceeding three thousand Naira in value.
The counsel for the appellant trudged on and stated that, going by the count 3 of the charges which had been labelled against the appellants, they had been accused of stealing items valued at N500,000.00[which btw is waaaaay above N3000], and was therefore an offence punishable under section 390(9) of the criminal code, and as such did not fall under the jurisdiction of the trial Chief Magistrate. He didn’t stop there though, he also submitted that the lower court had made an error by establishing that the trial court has sufficient jurisdiction by virtue of section 304(5). He opined that, seeing as the court lacked sufficient jurisdiction over the matter at hand, the whole proceedings had to be declared null.
To counter everything the learned counsel for the appellant had said, the defendant’s counsel submitted that the magistrate court had the jurisdiction over that particular matter, as a virtue of sections 411(1) and 390(9) of the Criminal code. He backed up his claims with a reference to section 221(c) of the Magistrate’s Court Law, Cross River State. Finally, the counsel for the defendant argued that, even if [by sheer luck] it was debated on collectively and found that the Magistrate court had no jurisdiction to try offences bordering on housebreaking and stealing in charge, its jurisdiction over issues of conspiracy and assault could not be disputed.
The third issue which was raised by the appellants and the defendants (surprise surprise, they are in consonance) questioned the delivery of a final judgment after a no case submission had been made by the learned counsel for the appellants. The appellants’ counsel contended that after the submission of the ‘No Case’ which questioned the lack of the essential indictment elements in the prosecution’s charge, the Chief Magistrate did not conduct further research into the matter, but rather hinged the whole judgement on the witnesses produced by the respondents. He queried the trial court for breaching section 287 of Criminal Procedure Law, and the nonalliance of the court’s decision with a precedent set before it in the case of Fawehinmi v. Abacha (996) 9 NWLR(Pt. 475) at 710 , in which it was reiterated that the court had a mandate to look into every claim and point forwarded to it, no matter how preposterous it may seem.
HELD
The Court of Appeal unanimously allowed the appeal, and the appellants were discharged and acquitted of all charges.
The Procedure for making a “No Case “submission, and effect of defence resting its case on that of the prosecution – In reading the leading judgement, Dennis Onyejife JCA, postulated that a plethora of cases had already resolved the requirements for a ‘No Case’ submission to be upheld in court.
For one, it has to be evident that there is no incriminating material that could pass as an essential element in the offence of which one had been accused of. It should also be established that the evidence provided by the prosecution had already been discredited and nullified through the process of cross examination, or it simply went up in air.
If this submission is upheld, the accused must be immediately acquitted, but in a case where they are overruled, the accused then has to be able to make its defence. It was also held that when the defence is insistent on making a ‘No Case’ submission and also prefers to rely on whatever evidence is adduced to the prosecution, different terms of consideration are taken into account.
An accused person resting the case totally on the prosecution’s case alludes to the accused inadvertently adopting every evidence and witness submitted by the defence. It then goes without saying that when this procedure is adopted, the accused’s counsel is expected to intimate the court on all the defects of the prosecution’s argument, and try to discredit the witness testimonies and evidence submitted to the court.
Thus, if an accused party makes a ‘No Case’ submission, and this submission is overruled, the accused can later on introduce fresh witnesses. Whereas, in the event of an accused whom files for same ‘No Case’ submission AND also rests its case on the prosecution, the accused would not be able to introduce witnesses into the case later on in the process.- The Form and content of judgement of court under section 245 of the Criminal Procedure Law and what amounts to sufficient compliance therewith by a Magistrate’s court – Section 245 of the Criminal Procedure Law, Cross-River State provides that; The Judge or Magistrate must record every judgement in writing, and that each judgement contained must comprise of the point(s) of determination, the decision/final verdict, the reasons for the judgement(ratio decidendi) and shall be dated and signed by the Judge or Magistrate at the time it is pronounced.
The section also gave leave to the Judge/Magistrate that instead of writing the judgement, it won’t be seen as having contravened the section if the Magistrate/Judge; records his decision in a book briefly; writes down the decision and delivers an oral judgement; records the information in the mode prescribed by the section. With the previous sentence, it can be deduced that it is legally permissible for a Magistrate/Judge to record his decision briefly, and then deliver an oral judgement, but it is not proper for the judge to deliver an oral judgement and then record his reasons, or put his judgement down in writing. Such a record of a judgement[oral-writing] is regarded as a nullity. - The guiding principles for courts in making order of retrial – The Locus Classicus on the principles governing the circumstances when an order of retrial can be made is Federal Supreme Court case of Yusufu Abodundun v. Queen (1959) SCNLR 162 at 166 – 167(1959) 4 FSC70 at 73 – 74. In this case, the Court stated that to order a retrial, the Court had to be satisfied that;
• There had been an error in the law, or an irregularity in proceedings, of which the court could not determine accurately if there had been a miscarriage of justice, and the trial had not been rendered a nullity.
• That, disregarding the error or irregularity in the peculiar case, the evidence taken into account discloses a substantial case against the appellant.
• That there are no addons which would jeopardise the retrial process
• That the offence(s) that had led to the conviction were not merely trivial
• That to refuse the retrial would result in a grave miscarriage of justice
Hey!!!!! You got this far, that is very good. Thank you very much. An ardent observer and reader would notice that today I did not make use of a Nigerian Weekly Law Report (NWLR), rather I used the 2006 Volume 4 of the Criminal Law and Procedure Reports (CLPR). This Law report, in case you did not know or you have not come across it, is dedicated to reporting cases, with corresponding issues, as it pertains to Criminal Law procedures. In this case, we were intimated on the process for making an order of retrial, the process involved in legally challenging proceedings of a court process, and what actually happens when a person files a “No Case: submission to the court.
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