Simon Edibo V The State (2007)
LAWGLOBAL HUB Lead Judgment Report
F. TABAI, J.S.C
The appellant, Insp. Simon Edibo, was one of ten persons charged with the commission of various offences including culpable homicide. The trial was at the Benue State High Court at Makurdi and it was before late A.J. Ikongbeh, J., (as he then was). The trial involving the testimony of witnesses and address of counsel for the prosecution and defence ended on the 29/5/98. In his judgment on the 7/8/98 the appellant who was the 5th accused and the 4th accused A.S.P. David Joshua (since deceased) were each found guilty and convicted of culpable homicide and sentenced to death. They both proceeded to the Court of Appeal on appeal. In its unanimous judgement on the 7th of December, 1999 the appeal was dismissed. By the notice of appeal dated 9/12/99 each of the convicts came on appeal to this court. The other appellant having died, it was the appeal of the present surviving appellant that was heard on the 15/2/07. The appellant and the respondent filed and exchanged their briefs of argument. The appellant’s brief was prepared by Rotimi Oguneso of Abdullahi Ibrahim & Co and same was filed on the 26/1105. The respondent’s brief was settled by Vera Venda (D.P.P. Ministry of Justice, Benue State). The two parties agreed and formulated only two issues for determination thus:
- Whether the court below was right in affirming the decision of the trial court to the effect that the force used by the appellant was far in excess of what was reasonably necessary to effect arrest.
2, Whether the court below was right when it held that taking the plea of the appellant in chambers by the learned trial Judge is not unconstitutional.
In addition the respondent has raised preliminary objection to a substantial part of the arguments of the appellant in the appellant’s brief. He referred, in particular to the arguments in paragraphs 4.7, 4.9,4,11,4.12,4,1.10,4.1.11 and 4.1.12 of the appellant’s brief and argued that the points therein having been raised without the leave of court cannot be entertained and urged that they be discountenanced.I have examined the arguments in the said paragraphs of the appellant’s brief and I do not, with respect, agree with the view of the learned Director of Public Prosecutions. The arguments in those paragraphs are focused mainly on evaluation of the evidence on record. It is the contention for the appellant that had there been a proper evaluation, the appellant would not have been convicted for culpable homicide. He therefore invited this court to re-evaluate the evidence on record to see if it warrants the conviction for culpable homicide. It has been decided in a number of cases that counsel for an accused person cannot, in his final address, raise a fresh defense not supported by any evidence. See Ekpeyong v. State (1993) 5 NWLR (Pt. 295) 513 at 525. This case is however distinguishable because learned counsel for the appellant made copious references to the evidence on record in support of his submissions. No new issue is being raised here. Furthermore, it is settled law that in criminal trials the court is not confined to considering only the defences raised by an accused person. An accused person in a criminal trial is entitled to any defence which, on the totality of the evidence, is available to him whether or not he specifically raised it himself. And the court including an appellate court has a duty to carefully consider the entire evidence and give an accused person the benefit of any defence available therein to him notwithstanding the fact that it was not raised by him. See Gabriel v The State (1989) 5 NWLR (Pt.122) 457 at 464; Williams v. The State (1992) 8 NWLR (Pt. 261) 515; Udofia v. The State (1984) 12 SC 139. I hold that the preliminary objection was misconceived and is accordingly dismissed for lack of merit.
The first issue involves a detailed evaluation of the evidence to determine whether the force used by the appellant was far in excess of what was reasonably necessary to effect the arrest of the fleeing men. But having regard to the question raised in the second issue, the ultimate resolution of same and the likely consequential order, I shall first deliberate on the second issue.
The second issue is whether the court below was right when it held that the taking of the plea of the appellant in chambers by the learned trial Judge is not unconstitutional. It is clear from the record that the plea of the appellant who was the 5th accused person was taken on the 19th of January 1998 in Chambers. He pleaded not guilty to the charge. He was represented by his counsel J. S. Okutepa, Esq. These facts are recorded at pages 37 and 38 of the record. There is therefore no dispute that the plea of the appellant was taken in chambers. The question is the legal effect of this plea on the entire trial.
This issue was raised at the court below which after detailed consideration of the submissions of counsel for the parties and section 150(1) of the Evidence Act opined at page 263 of the record:
“Much as I fully subscribe to the view that pleas should be taken in open court, and that it is good practice and desirable my understanding of the authorities is no that except the court sits in the court hall to take plea as is now being urged upon us by the learned appellant’s counsel such plea automatically are invalid null and void and of no effect whatsoever.”
The court then went on to examine three previous decisions of this court namely Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257 at 273; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 and section 187 of the Criminal Procedure Code and concluded thus:
“From the foregoing analysis I think this court in the absence of contrary evidence, is entitled to assume that the correct procedure was adopted by the trial court on the issue of the appellants’ plea having been taken in chambers. The learned counsel has not been able to establish any irregularities on the part of the trial court on the arraignment of the appellants. I therefore find myself unable to accept the view of the learned counsel for the appellants that the proceedings, conviction and sentence of the appellants was null and void and of no effect whatsoever.”
The above reasoning and conclusion, though seemingly attractive, does not, with respect, represent the correct state of the law. The decision did not satisfy the appellant who has therefore brought the complaint here. It is the the submission of Rotimi Oguneso for the appellant that Oyeyipo v. Oyinloye (supra) and Chime v. Ude (supra) do not apply in this case. In his view, it is the decisions of this court in Nigeria Arab Bank Ltd. v. Barri Engineering Nigeria Ltd. (supra); Oviasu. Oviasu (1973) 11 SC 315; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251 that apply.
The learned D.P.P. on the other hand referred to some dictionary definition of “public place” and argued that the chambers of a Judge is, within the meaning of those definitions, a public place and that taking the plea of the appellant therein satisfies section 33(3) of the 1979 Constitution particularly having regard to the fact that members of the public were not restricted there from. It was submitted that taking the plea in the Judge’s chambers is a judicial and official act substantially regular by virtue of the provisions of section 150(1) of the Evidence Act. It was his further submission that reliance on N.A.B. Ltd. v Barri Engineering (Nig.) Ltd.; Oviasu v. Oviasu; and Nuhu v.Ogele will amount to leaving room for technicality to triumph while substantial justice prostrates. In the first place the lower court appeared to have laboured under the misapprehension that Oyeyipo v. Oyinloye and Chime v. Ude on the one hand and N.A.B. v Barri Engineering and Nuhu v. Ogele on the other are two sets of conflicting decisions of this court and preferred the former because they were decisions of the full court. There is no conflict between the two sets of decisions. In Oyeyipo’s case there was an application dated 24/10/06 by the respondent in an appeal for the appeal to be dismissed for want of diligent prosecution, the appellant having failed to file the appellant’s brief of argument within the period prescribed by the Supreme Court Rules. The application was served on the appellant. The appellant did not file any counter affidavit opposing the application for dismissal of his appeal. Nor did he file any motion for extension of time to file the appellant’s brief. On the 12/11/86 this court, in exercise of its powers under Order 6 rule 3(1) and (2) and 9 took the application in chambers and dismissed the appeal. Subsequent thereto the appellant brought an application to the court to set aside its dismissal of the appeal on the ground that the hearing of the application and dismissal of the appeal in chambers instead of the proceedings being conducted in open court was contrary to section 33 of the 1979 Constitution and therefore null and void. The application was refused and dismissed since this court derived its powers under Order 6 Rule 3(2) to hear the application for and dismissal of the appeal in chambers. Chime v.Ude (supra) was also to the same effect as Oyeyipo v. Oyinloye (supra). The appellants filed their notice of appeal to the Supreme Court on 21/4/93. The record of proceedings was transmitted to the Supreme Court on the 29/12/93. Under Order 6 rule 5(1) (a) of the Supreme Court Rules, 1985 (as amended) the appellants should have filed their brief of argument on or before the 14/3/94. They failed to file their brief. On the 8/3/95 this court suo motu and sitting in chambers dismissed the appeal by recourse to its powers under Order 6 rule 5(2) of the Rules of the Supreme Court. On the 6/ 11 /95 the appellants brought an application for the court to set aside its dismissal of the appeal. The application was dismissed.
These two cases were predicated on the powers specially vested on the Supreme Court under the Rules of the Supreme Court to sit in chambers to dismiss an appeal either on its own motion or upon the application by the respondent. And the said Rules having been made pursuant to section 216 of the 1979 Constitution are not unconstitutional and indeed made to achieve the very fair hearing guaranteed in section 33 of the 1979 Constitution. Even this authority of the Supreme Court to sit in chambers is limited in scope, and restricted only to non-contentions applications or circumstances. Once there is an indication, on good cause, that the order sought to be made is contested, the matter has to be taken in open court. Let me now consider the other set of cases. In Oviasu v. Oviasu (1973) 11 SC 187 the hearing of the matrimonial case took place in the chambers of the trial Judge. Neither the parties nor their counsel requested for the hearing in chambers. In his judgment at the conclusion of the hearing the learned trial Judge dissolved the marriage. On appeal this court allowed the appeal, set aside the judgment and ordered a trial denovo. The court (per Sowemimo, JSC) after referring to section 22, subsections 1 and 3 of the Constitution of the Federation, Order 25 rule 3 of the High COURT (Civil Procedure) Rules of Western Region then applicable in Mid- Western Region and Macpherson v. Macpherson (1936) AC 177 at 220 concluded in the following terms:
“The hearing of this divorce case in the chambers of the learned trial Judge was not made a specific issue in the grounds of appeal filed before us but during the arguments however, our attention was drawn to it by learned counsel for appellant as being irregular. As the counsel for the respondent did not apply for the hearing of the case in chambers there was nothing he could say. On the record it seems that the decision to take the case in chambers was the decision of the learned trial Judge himself. We regard the irregularity as being fundamental, which touches the legality of the whole proceedings including the judgment and the incidental orders made thereafter. We therefore hold that all that happened in the Judge’s chambers did not constitute a regular hearing of an action in a court.” Nigeria-Arab Bank Ltd. v. Barri Engineering Nigeria Ltd. (supra) presented a similar scenario. The appellant was the defendant at the High Court in a claim for damages. At the close of evidence and address of counsel for the parties, the matter was adjourned to the 29/8/91 for judgment. On the 29/8/91 the learned trial Judge, for no reasons advanced to the parties and on his motion invited counsel for the parties into his chambers and delivered the judgment wherein he granted all the reliefs claimed by the plaintiff/respondent. His appeal to the Court of Appeal was dismissed, the court relying on Oyeyipo v. Oyinloye (supra) which it thought overruled Oviasu v. Oviasu (supra). On further appeal this court relying on section 33 of the Constitution 1979, Order 36 rule 1 of the High Court Rules Lagos State and after distinguishing Oviasu v. Oviasu and Oyeyipo v. Oyinloye, allowed the appeal, set aside the judgment on the ground of nullity and ordered a retrial. In his concluding judgment Ogundare, JSC had this to say in conclusion:
‘The conclusion I reach is that in the delivery of the judgment in this case the learned trial Judge has committed a fundamental breach of the provisions of section 33(3) and (13) of the 1979 Constitution and of Order 36 rule 1 of the High Court Rules of Lagos State. The breach vitiates the entire proceedings before him. There must be no room at any stage of the hearing of a cause for cloistered justice.” (see pages 290-291)
The principle in Oviasu v. Oviasu and N.A.B. v. Barri Engineering was again applied in Nuhu v. Ogele. As I pointed out earlier the plea of the appellant and other accused persons were taken in the Judge’s chambers on the 19th of January 1998. The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity. See Sanmabo v. The State 1967 NMLR 314; Alake v.The State (1991)7 NMLR; The State v. Madokolu (1972) 2 ECSLR 426.
In the light of the foregoing, was the Court of Appeal right when it held that the arraignment and taking the plea of the appellant and other accused persons in the chambers of the learned trial Judge was proper. I answer this question in the negative. The proceeding of the 19th of January, 1998 wherein the plea of the appellant and others were taken in the Judge’s chambers was not only irregular; it was fundamentally defective rendering the entire proceedings null and void.
I hold in the circumstances that this appeal succeeds on that issue. The appeal is accordingly allowed and the judgment of the court below set aside. The entire proceedings of the learned trial Judge including the conviction and sentence of the appellant and others tried along with him contravened the provisions of section 33(3) of the 1979 Constitution and same is hereby declared null and void and is set aside. Having come to this conclusion the next question is the appropriate order to make. Should it be one for retrial of the appellant In order to justify an order of retrial, an appellate court must satisfy itself of the existence of number of factors, depending on the peculiar facts and circumstances of each case. The factors include:
(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that the appellate court is unable to say that there has been no miscarriage of justice.
(b) that besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant.
(c) that there are no special circumstances that would render it oppressive to put the appellant on trial a second time.
(d) that the offence or offences with which the appellant is convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
See Abodundu v. Queen (1959) SCNLR 162; Okoduwa v. The State (1988) 2 NWLR (Pt.76) 333; Attah v. The State (1993) 7 NWLR (Pt. 305) 257 at 289; Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 at 394-395.
In this case, there is no doubt that there was an error in law and/or irregularity in procedure warranting the nullification of the entire proceedings. However, for the purpose of whether or not to order a trial there are a number of factors for consideration. On the facts accepted by the learned trial Judge the appellant and the other co-accused persons had been put on a state of alert to intercept and arrest some fleeing robbers who had earlier dispossessed a colleague of his gun. They had been given the description of the vehicle in which the robbers were escaping. The appellant and others saw an approaching vehicle which matched the description of the one used by the alleged fleeing robbers. From this vehicle alighted the deceased persons and the PW8 who started running into the bush conveying the impression that they were the fleeing robbers. It was at this stage that the appellant and late 4th accused person fired, resulting in the death of the deceased persons. In these circumstances, can it be said with certainty that the force used by the appellant and the 4th accused person was far in excess of what was reasonably necessary to effect the arrest of the fleeing men I have my doubts which should be resolved in favour of the appellant. At best they can only sustain a conviction for manslaughter. The appellant has been in prison custody for about ten years. His colleague A.S.P. David Joshua has since died in prison custody. In such circumstances, I think it will be oppressive to order a retrial.
Besides, an order of retrial would necessarily involve the re-arrest of the other accused persons who were discharged and acquitted. 1st – 3rd accused persons were convicted of lesser offences. The result is that the consequences of such an order of retrial would not be merely trivial.
From all the circumstances a discharge would best serve the ends of justice. Accordingly, I enter a verdict of discharge for the appellant.
SC.284/2003