Emmanuel Abarshi V. Commissioner of Police (2004)
LawGlobal-Hub Lead Judgment Report
BULKACHUWA, J.C.A.
The appellant, as accused was first arraigned before the Chief Magistrate Court, Wuse on 15th February, 1996 on a First Information Report (FIR) of an alleged theft, contrary to section 289 of the Penal Code.
The appellant, an assistant inspector of prisons, being entrusted with the house of one Emmanuel Mato, an Assistant Controller General of Prisons who traveled to Lagos on an official assignment, was said to have stolen a video, a television with their remote controls, a food blender and a flask from the house. The appellant as accused, before the Chief Magistrate Court, denied the information in the F.I.R. The prosecution thereafter called 5 witnesses and tendered exhibits, in a ruling delivered on the 28/8/96 the trial chief magistrate found that a prima facie case has been made out against the appellant and framed a charge, against him, of criminal breach of trust contrary to section 312 of the Penal Code of the items listed above.
The appellant pleaded not guilty to the charge, recalled the PW1, PW2 and PW3 for further cross examination in his defence. In a considered judgment delivered on 9/9/97 the trial Chief Magistrate found the appellant guilty as charged and convicted him and sentenced him to a term of 12 months imprisonment with an option of fine of N1000 and payment of N2000 compensation to PW1 within one month or serving an alternative term of imprisonment for 3 months.
The appellant being dissatisfied, appealed to the High Court of the FCT in its appellate jurisdiction on ten grounds of appeal, three of the grounds complaining that the FIR, the charge and the amended charge were all read to the appellant by the trial Chief Magistrate in chambers in contravention of the provisions of section 33(3) of the 1979 Constitution. On hearing the appeal, the lower court found no substance in it and dismissed same affirming the conviction and sentence of the appellant by the trial Chief Magistrate.
The appellant dissatisfied now appealed to this court on these grounds of appeal.
Ground 1
The learned justices of the appellate division of the High Court of Justice, Abuja erred in law by holding that it is not unconstitutional to sit in chambers and not making a finding that the whole trial was a nullity since the constitutionality of hearing criminal proceedings in public was not adhered to and same is a fundamental breach which vitiates the entire proceedings.
Ground 2
The decision cannot be supported having regard to the evidence. From these two grounds the appellant formulated a sole issue for the determination of the appeal in an amended brief deemed filed on 16/10/01 to wit;
Whether the trial and conviction and the subsequent judgment of the High Court is not invalid, null and void and of no effect.
The respondent in his brief which by the leave of this court was deemed filed and served on 3/6/02 formulated two issues which are produced hereunder:
(1) Whether then High Court of Justice Abuja was right in holding that the sitting in chambers by the magistrate court is constitutional?.
(2) Whether having regard to the totality of evidence adduced, the appellant ought to have been convicted?.
The issue as formulated by the appellant to my understanding is based on ground one of the grounds of appeal. No issue is formulated on ground two. It is trite that for a ground of appeal to be relevant for consideration in an appeal an issue must be formulated from it. Where no issue is formulated from a ground of appeal, as in the instant case, it is deemed as abandoned and therefore liable to be struck out – See Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391; Okoye v. Nigerian Construction & Furniture Ltd. (1991) 6 NWLR (Pt.199)
.In this appeal, the appellant has formulated no issue from ground is therefore deemed abandoned and is hereby struck out.
Similarly, issue 2 formulated by the respondent based on ground 2 which has been struck out is also struck out with all arguments based on it.
This appeal will subsequently be determined on the issue formulated by the appellant.
In his brief of argument deemed filed by the leave of this court on 16/10/2001 the appellant submits after reference to the provisions of s.33(3) of the 1979 Constitution Which stipulates that any person charged with a criminal offence is entitled to a fair hearing i.e. the right to be heard in public, pointing out that this right to fair hearing as enshrined in the constitution was infringed at the trial of the appellant as he was arraigned before the trial magistrate in chambers on the 15th February, 1996, so were most part of the proceedings conducted in chambers.
It is the contention of the appellant that where a trial is conducted in chambers, as in the instant case, not in an open court as provided for by the Constitution the whole proceedings of the trial court becomes a nullity. Relying on these cases: Oviasu v. Oviasu (1973) 1 All NLR (Pt 2) 75; Ogele v. Nuhu (1997) 10 NWLR (pt. 523) 109; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257; Salawu v. Adza (1997) 11 NWLR (Pt. 527) 14; N.A.B. Ltd. v. Comex (1999) 6 NWLR (Pt. 608) 648; Mika’llu v. State, 2000 5 WRN 74
He further submits that the trial magistrate having breached constitutional provisions the whole trial has been rendered null and void and the appellate division of the High Court FCT should have held so and eleclared the trial a nullity instead of holding that the trial magistrate was right in conducting part of the criminal proceeding and delivering the rulings in chambers. He urged us to allow the appeal and discharge and acquit the appellant. The respondent in his brief deemed filed on 3/6/2002 with the leave of this concontended that the appellant was given a fair hearing before to Magistrate Court and the said hearing was done in public.
Pointing out that when the ruling and the amended ruling were and to the appellant in chambers, the appellants counsel, prosecution carven and court clerks were present. That their presence satisfies requirement of the provisions of section 225 of the Criminal Procedure Code and section 33(3) of the 1979 Constitution.
It is the respondents submission that it is not unconstitutional for a court to sit and deliver a ruling in the presence of counsels, court clerks and the appellant’s counsel in chambers putting reliance on Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379402 contending that the learned Justices of the appellate High Court were right to have upheld same.
That the cases of Oviasu v. Oviasu and Nigeria Arab Bank Ltd. v. Barri Engineering Ltd. (supra) cited by the appellant are in respect of a judgment read in chambers and thus distinguishable from the facts of the present appeal and urged its to dismiss the appeal.
It is the contention of the appellant both at the lower court and this court that the arraignment of the appellant, the reading of the charge and the reading of the amended charge before the trial magistrate were done in chambers. This has not been denied by the respondent but rather an admission that it was so, what the respondent was contending was that though the arraignment and the charges were read in chambers it was not done secretly but in the present of counsels, appellants counsel and court clerks.
The lower court in its judgment at page 74 of the records upheld the submission of the respondent and found as follows:
“Both section 33(3) of the 1979 Constitution and section 225 CPC enjoin courts while trying those accused of committing any criminal offence to allow such trials to be held in public. In the instant appeal, there is no evidence to suggest that the trial was held secretly. When a court sits in chambers, all that it means is that the Judges of the court are transacting the business of the court in chambers instead of open court. It does not mean that the court is not sitting in public. A court can sit in open court and yet exclude members of the public other than the parties or their legal representatives from leaving in exercise of its statutory powers. Equally, a Judge may sit in chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers. Per Ogundare, JSC in Godwin Chime & Ors. v. Nelson Ude & 2 Ors. (1996) 7 NWLR (Pt. 461) 379 at 471. The learned counsel referred us, deal with secret trials i.e. not in the public. They are therefore distinguishable from the one in hand. Here the issue in contest is the sitting in chambers without more. Without any evidence to suggest that the members of the public were excluded or that the trial was held in secret.”
In as much as the Supreme Court had held in Oyeyipo v. Oyinloye (supra) the case relied on by the respondent, that sitting in chambers may amount to sitting in public as envisaged by the provisions of S.33(3) of the 1979 Constitution, the court had in Nigerian Arab Bank Ltd. v. Barri Engineering Nigeria Ltd. (supra) reconstrued the said provisions. In that case the respondent had sued the appellant before the Lagos High Court claiming damages for the negligent processing of the respondents letters of credit. After the filing of pleadings the trial was conducted in an open court, the judgment however was delivered in chambers in favour of the respondent.
The appellant appealed to the Court of Appeal, one of the grounds being the delivery of judgment in chambers. The Court of Appeal relying on Oyeyipo’s case upheld the judgment of the trial High Court.
On further appeal to the Supreme Court, the court held per Belgore, JSC at page 274:
“The aforementioned constitutional provisions and rules of court made thereunder are peculiar to the Supreme Court, they do not extend to other superior courts of record. Therefore, the provisions of section 33(3) of the Constitution are fundamental and must be adhered to strictly by all courts of record subject to the exception explained above in respect of certain applications before the Supreme Court. The Supreme Court itself is confined to such applications as enumerated in Order 6 rule 2(1), (2), (3) and (4) and also Order 6 rule 3(1), (2) and (3) to decide on documents filed and in other cases apart from such applications, it must hear matters and give judgments and rulings upon them in the open court or in public. I regret that this issue has vitiated the trial through the error of the trial Judge and misapplication of the error by the court of Appeal. On this issue alone of giving judgment not in public as demanded in section 33(3) under fundamental rights in chapter IV of 1979 Constitution, but in chambers, the judgment is a nullity and vitiates the entire proceedings”
See also (supra) pages 275-276 per Kutigi, JSC:
“I think the court of Appeal was unnecessarily trammened by the case of Oyeyipo v. Oyinloye (supra). That case was concerned with an application asking this court to set aside its own decision dismissing applicants appeal in chambers for want of prosecution under appropriate rules of court validly made by the Chief Justice of Nigeria vide section 216 of the Constitution of 1979. So the decision in Oyeyipo v. Oyinloye (supra) must be confined and limited to the appropriate provisions of the Supreme Court’s Rules relating to matters specified in those rules which can be dealt with in chambers…
From the foregoing it would by now be clear that Oviasu v. Oviasu (supra) is still the law it has not been overruled by the decision in Oyeyipo v. Oyinloye (supra). The Court of Appeal was clearly in error for holding otherwise. So as it was in Oviasu v. Oviasu (supra), it will also be in this appeal. The irregularity occasioned by the delivering of judgment in chambers contrary to clear and unambiguous provision of section 33(3) of the 1979 Constitution above is very fundamental and vitiates the whole trial.”
From the above it is clear that the decision in Oviasu v. Oviasu is still the law. The lower court and the respondents from the record before us are under the impression that the above findings only relate to when a judgment is read in chambers. This is not however the case for this court had in Salawu v. Adza (1997) 11 NWLR (Pt.527) 14 nullified a trial where the ruling was delivered in chambers.
On the whole the lower appellant High Court was wrong to have upheld the decision of the trial magistrate court as part of the said court proceedings where conducted in chambers a clear infringement of the appellant’s right to fair hearing as provided for in section 33(3) of the 1979 Constitution and section 225 of the Criminal Procedure Code. In the circumstances this appeal has merit and I allow it.
The judgment as delivered by the trial magistrate court on 9/9/97 is a nullity and the entire proceeding is vitiated. I hereby set it aside and order a retrial before another magistrate of the Federal Capital Territory.
Other Citations: (2004)LCN/1666(CA)