State V. Yanga (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C. 

By a Charge dated 8/4/2014, the Respondent was charged on 14 count charges bordering on stealing and obtaining by false pretence. See pages 3-7 of the record.

That the Respondent had under false pretence contrary to Section 419 and stealing contrary to Section 390(9) of the Criminal Code Law of Ogun State obtained and stole varying sums of money ranging from N6,489,000.00 (Six Million, Four Hundred and Eighty-Nine Thousand Naira) to N121,000.00 (One Hundred and Twenty One Thousand Naira) from persons within the jurisdiction of the trial Court.

At the trial, out of the 8 witnesses listed, 5 testified while the Respondent gave his lone evidence. On 20/11/2015, during the trial, slated for final oral address, the Respondent was reported sick by his Counsel to the Court. However, despite the information, the trial Court directed that final oral address be taken in the absence of the Respondent against the provision of Section 210 of the Ogun State Criminal Procedure Law, 2006. See page 71 of the record. Judgment was delivered on 1/12/2015, wherein the Respondent was convicted and sentenced to 7 years imprisonment. Dissatisfied, the Respondent appealed to the lower Court, Ibadan Division, which set aside the trial Court’s judgment, quashed the conviction and sentence of the Respondent. Miffed, the Appellant has now appealed against the judgment of the lower Court, seeking for determination:

1. Whether the learned Justices of the Court of Appeal, Ibadan division were right when they held that the absence (intentional) of the accused person in Court on a date meant for Counsel addresses vitiated the entire proceedings.
2. Whether the learned Justices of the Court of Appeal, Ibadan division were right when they held that the decision in STATE V. LAWAL (2013) 7 NWLR (PT.1354) @ PP.565 was on all fours with the circumstances in this case.

The Respondent however formulated his issue, which I shall adopt to consider this appeal:

Taking into consideration the settled fact that the Respondent herein was not in Court on 20th November, 2015 when counsel’s address was conducted by the trial Court, can it be legally contended that the Honourable Court below is not bound by the pronouncement of this Honourable Court in STATE V. LAWAL (2013) 7 NWLR (PT.1354) AT 568 such that the Honourable Court below ought to have acted otherwise.

RESOLUTION OF ISSUE FOR DETERMINATION:

It is submitted by the Appellant’s learned Counsel that, although the Respondent was not in Court on 20/11/2015, when the matter came up for address by Counsel, the Respondent nonetheless was represented by his Counsel, who addressed the Court on his behalf, hence cannot vitiate the whole proceedings of the trial Court. Since the Respondent did not suffer any miscarriage of justice, the lower Court was wrong to vitiate the entire proceedings of the trial Court based on the absence of the Respondent on that date. On what amounts to miscarriage of justice and irregularity respectively, he placed reliance on ITU V. STATE (2016) LPELR-26063-(SC), ODEH V. FRN (2008) LPELR-2205(SC). He further submitted that since the Respondent was represented by his own Counsel that fateful day, the Respondent ought to be bound by it as decided in NGERE & ANOR V. OKURUKET & ORS (2014) LPELR-22883(SC). Also, that the Respondent has waived his right when he was represented by his Counsel in Court.

The Appellant’s learned Counsel distinguished the case of STATE V. LAWAL (2013) 7 NWLR (PT.1354) AT PP. 565 from the instant appeal in the sense that the former involved several accused persons, evidence was led in the absence of some of the co-accused persons, final addresses with the judgment was delivered behind some of the co-accused persons and the judgment was delivered after 10 months. Thus, that every case is determined and decided by its own specific facts. He cited the cases of UGWUANYI V. NICON INSURANCE PLC (2013) LPELR- 20092 (SC), UDO V. STATE (2016) LPELR-40721 (SC). Thus, that it was wrong for the lower Court to have applied the case ofSTATE V. LAWAL (2013) 7 NWLR (PT.1354) AT PP.565 to the facts and circumstances of the present case. He therefore urged for the resolution of this issue in favour of the Appellant and to allow the appeal.

The learned Counsel to the Respondent on the other divide made his submission to the effect that the ratio decidendi in STATE V. LAWAL (2013) 7 NWLR (PT.1354) AT PP.565 is that an accused person cannot be tried in his absence; otherwise the whole trial is a nullity. That the facts of the present appeal are similar with the case above. Thus, making the facts in the present appeal agreeable with the provision of Section 210 of the Ogun State Criminal Procedure Law, 2006, which mandates the presence of the accused person throughout his trial.

Furthermore, he submitted that the Respondent was not playing pranks as assuaged by the Appellant’s learned Counsel. It was on record that the Respondent was calamitously hit by the death of his wife and child, which occasioned his absence in Court. It follows therefore that taking Counsel’s address in the absence of the Respondent, being the accused person, is a breach of his right to fair hearing, and it is not necessary to inquire whether there was miscarriage of justice or not. He placed reliance on U.B.N. PLC V. ASTRA BUILDERS (W.A) LTD (2010) ALL FWLR (PT.518) AT 887-888, MPAMA V. F.B.N (2013) 5 NWLR (PT. 1346) AT 204, ADEOYE V. STATE (1999) 6 NWLR (PT.605) AT 94. He urged this Court to resolve this issue against the Appellant and dismiss the appeal.

​A terse and succinct recap of the facts in this appeal is that during the trial of the Respondent on 20/11/2015; which date was fixed for final oral address, the Respondent was reported sick by his Counsel to the Court. See page 71 of the record. Despite the information, the trial Court directed that final oral addresses be taken in the absence of the Respondent and thereafter judgment was delivered on 1/12/2015, wherein the Respondent was convicted and sentenced to 7 years imprisonment.

The Appellant’s stance and submission herein is that since the Respondent was ably represented by his Counsel in Court, who acted on his behalf, the proceeding cannot be vitiated for the mere absence of the Respondent in Court that day.

I make haste to state here that the criminal trial of every accused person begins with arraignment and culminates with conviction and sentence in judgment. In the precedent relied upon by the Respondent’s learned Counsel, STATE V. LAWAL (2013) 7 NWLR (FT. 1354) AT PP.586, Mohammad, JSC, defined criminal trial to mean “the whole of the proceedings including the judgment and sentence” This therefore has been the constitutionally inalienable right enjoyed by every accused person. It is the Respondent’s constitutional right to be heard through his written/oral address or Counsel’s address on his behalf. Section 294(1) of the 1999 Constitution (as amended) contemplated written address or Counsel’s address to be part of the criminal trial or proceedings, when it provides that: