MR. Kehinde Oduneye V. Federal Republic Of Nigeria & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Ruling of Williams J. of the High Court of Lagos in the Lagos Judicial Division in Charge No. LCD/17/2008 delivered on the 6th day of August, 2012. In the said ruling the learned trial judge held as follows:-

i. That the criminal trial proceedings held on diverse dates in the absence of the appellant and the 4th Respondent cannot be set aside or nullified because the circumstances of the case constitute exception to the mandatory provisions of section 210 of the criminal Procedure Act, Section 208 of the Administration of Criminal Justice law of Lagos State and the Supreme Court decision in ADEOYE v. STATE (1999) 4 SC (Pt. 11) page 67 that trial in absentia is not known to our criminal procedure law and rules.

ii. That the appellant through his counsel waived his right not to be tried in absentia.

iii. That the appellant and 4th Respondent have not shown injuries sustained in conducting criminal trial in their absence.

The facts: At the High Court of Lagos State, Lagos Judicial Division the 1st Respondent, Federal Republic of Nigeria as Complainant brought a 21 count charge information against the Appellant Mr. Kehinde Oduneye as the 4th Accused person alongside 2nd, 3rd, 4th, 5th Respondents as 1st, 2nd, 3rd, 5th Accused persons and the 6th Accused person later struck out on the 26th of July 2008. The information sheet was accompanied by List of witnesses and their addresses together with the Proof of Evidence.

Trial in the matter commenced on the 26th of June 2008 when the plea of the Appellant and the other accused persons were taken and they all pleaded not guilty. When the Prosecution closed its case after cross-examination of the prosecution witnesses, the Appellant and the other accused persons separately filed a “no case submission” with written addresses. On the 12th of March 2010 the learned trial judge Williams J. Overruled the “no case submission” and called on all the accused persons to enter their defence to the charges. Thereafter, the 1st – 2nd Accused persons commenced and concluded their cases.

The 3rd Accused Person was on the verge of concluding her defence when the Appellant as 4th Accused person filed an application dated 5th April 2012 praying for the nullification of the entire trial proceedings as well as his discharge and acquittal on the grounds that trial in the matter was conducted in his absence on the 17th of July 2008 and also in the absence of the 2nd Accused Person on the 24th February 2012, 3rd March 2011 and 20th May 2008 and the 3rd Accused Person on the 29th January 2009 and 4th March 2009.

The 3rd Accused person filed a similar application seeking similar reliefs to that of the 4th Accused Person. The Prosecution filed counter affidavits in opposition to the applications. The 3rd and 4th accused persons filed reply affidavits. On the 6th of June 2012, the two applications were moved.

Learned counsel for the Complainant adopted his written addresses to the respective applications of the 3rd and 4th accused persons while the 3rd and 4th Accused persons adopted their written replies on law. In a reserved Ruling delivered on the 6th of August 2012, Williams J dismissed the two applications and adjourned the case for continuation of trial.

The 4th Accused dissatisfied with the said Ruling has now appealed to this Court by a Notice of Appeal with two (2) grounds of appeal out of which he formulated two issues for determination in his brief as follows:

1. “Whether from the clear and plain mandatory provisions of Section 210 of Criminal Procedure Act, Section 208 of the Administration of Criminal Justice Law of Lagos State 2008 and 2011 and the ratio decidendi in the case of Adeoye v. State (Supra) trial in absentia is permissible in criminal trial proceedings in Nigeria Legal system and jurisprudence (This issue covers ground one of the Notice of Appeal).
2. Whether in Civil or Criminal Proceedings, the right provided by the constitution and Statute can be waived by counsel without the consent, authority and approval of the Persons who have the inalienable right (this issue covers ground two of the Notice of Appeal).”

The 3rd Accused Person also dissatisfied with said Ruling filed a Notice of Appeal with three (3) grounds of appeal. She did not however file a Brief of Argument. Rather she filed a Notice of Intention to align herself with the Appellant’s Brief. By doing so she is deemed to have adopted the Appellant’s Brief of Argument as her own Brief of Argument in support of her Appeal.

The 1st Respondent in his Brief of Argument formulated three (3) issues for determination, namely:

1. “Whether the Learned Trial Judge fully appreciated and applied the provision of Section 208 of the Administration of Criminal Justice Law, 2011 and the Principles of Law enunciated in the appellate court decisions in the cases of Adeoye v. State (1999) 6 NWLR (Pt. 605) 74 and Osayomi v. State (2007) 1 NWLR (Pt. 1015) 352 to the peculiar facts and circumstances of the instant case whilst refusing and dismissing the Appellant’s application, regards having being had to the doctrine of stare decision.

Or Alternatively