Circumstances where section 15 of the court of appeal Act cannot be invoked

Joseph Idakwo v. Federal Republic of Nigeria & Anor

CITATION: (2021) LPELR-53439 (CA)
In the Court of Appeal
In the Abuja Judicial Division
Holden at Abuja

ON WEDNESDAY, 3RD MARCH, 2021
Suit No: CA/ABJ/CR/981/2020

Before Their Lordships:

STEPHEN JONAH ADAH
JUSTICE, COURT OF APPEAL
PETER OLABISI IGE
JUSTICE, COURT OF APPEAL
YARGATA BYENCHIT NIMPAR
JUSTICE, COURT OF APPEAL
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU
JUSTICE, COURT OF APPEAL
RIDWAN MAIWADA ABDULLAHI
JUSTICE, COURT OF APPEAL

Between

JOSEPH IDAKWO

– Appellant(s)
1. FEDERAL REPUBLIC OF NIGERIA
2. ZAMTRAC MANAGEMENT AND CITY INVESTMENT LIMITED
-Respondent(s)

LEADING JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.
FACTS
The Appellant was charged for the offence of criminal breach of trust and other fraud-related offences. After the five-count charges under which the appellant together with his co-accused was arraigned were read to them, they entered a not guilty plea. Thereafter, the matter went into full trial.

In the course of the trial, the 1st Respondent amended its charge from five counts to six counts. While cross-examining PW1, the learned counsel for the Appellant and 2nd Respondent sought to tender a Ruling of the Magistrate Court wherein the appellant was discharged and acquitted by the said Court following a No-Case Submission. 1st Respondent’s counsel objected to the admissibility of the said Ruling. The objection was upheld and the document was marked as rejected.

Dissatisfied with the Ruling, the Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court considered the following issues in the determination of the appeal: “1. Whether the trial High Court was right when it refused to admit in evidence, the Certified True Copy of the Ruling of the Magistrate Court, delivered on the 21st February 2020, merely on the ground that PW1, who was led to identify the document under cross-examination, was not the maker of the document? 2. Whether in view of the clear and unambiguous provisions of Section 36(9) of the constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 238 of the Administration of Criminal Justice Act, 2015, the trial Court was right to have relied on Section 396 (2) of the Administration of Criminal Justice Act, 2015 to withhold Ruling on Motion No. M/8989/2020? 3. Whether the continuation of trial in charge No. FCT/HC/CR/9/2019 by the trial High Court without delivering ruling on Motion No. M/8989/2020, which Motion is a plea of autre fois acquit by the appellant, does not amount to double jeopardy against the appellant, contrary to the provisions of Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Sections 238 and 277 of the Administration of Criminal Justice Act, 2015?

APPELLANT’S SUBMISSIONS
Learned Counsel for the Appellant while canvassing issue 1 submitted that the refusal to admit the Ruling of the Magistrate Court in evidence on the ground that PW1 is not the maker, runs contrary to the settled position of the law as pronounced upon by the Court of Appeal and the apex Court, in a long line of judicial decisions. That it is now settled law that, admissibility of evidence is a matter of relevance, and where there are requirements of law, which must be satisfied for the evidence to be admissible, such requirements must also be satisfied. Counsel relied on Yako & Anor v. Jibrin & Ors. (2019) LPELR-48971.

He further submitted that having found that the document sought to be tendered was certified, the trial Court ought to have admitted the document in evidence.

On issues 2 and 3, the Appellant’s counsel stated that the amendment of the charge by the 1st Respondent to add the sixth count, is clearly an afterthought in a desperate attempt to overreach the Appellant’s plea of autre fois acquit. That the Supreme Court has admonished Courts not to allow applications that amount to an overreach. He relied on Akaninnwo & 4 Ors. v. Nsirim & 3 Ors. (2008) 9 NWLR (Pt. 1093) 439.

He submitted that whereas Section 36 (9) of the Constitution, Sections 238 and 277 of the Administration of Criminal Justice Act, make specific provision for the pleas of autre fois acquit or convict, Section 396 (2) of ACJA makes provision for “any objection”. Counsel asserted that as a result of the peculiar circumstance of the case, the trial Court ought to have applied the specific provisions which prohibit a second trial rather than apply Section 396(2) of ACJA, which amounts to double jeopardy against the appellant.

Counsel relied on Section 15 of The Court of Appeal Act, 2015 and urged the Court to exercise its power to hear and determine Motion No. M/8989/2020 in the interest of justice.

RESPONDENTS’ SUBMISSIONS
On issue 1, learned counsel for the 1st respondent submitted that it is settled that evidence must be relevant before it is admissible. But that relevant evidence can nevertheless be excluded if it is inadmissible by operation of the law. Relied on Isheno v. Julius Berger (Nig.) Plc (2008) LPELR-1544 (SC); Section 223 of the Evidence Act.

He stated that permitting such procedure of admitting a document for the purpose of cross examining a witness who knows next to nothing about the same is not only prejudicial but very unfair.

Counsel stated that the witness was a stranger to that document. Hence the Ruling constitutes hearsay evidence against the witness for the purpose of cross-examination, which is patently inadmissible. Relied on Section 38 of the Evidence Act 2011; Sections 14 and 15 Evidence Act 2011.

The 2nd Respondent relying on Order 19 Rule 4(2) of the Court of Appeal Rules, 2016; Alade v. Akande (1994) 5 NWLR (Pt. 345) Page 468 particularly at Page 480 Paras B-C. conceded to the points raised by the Appellant in respect of the Ruling of the Magistrate Court sought to be tendered through PW1 before the trial Court by the appellant.

On issues 2 and 3, 1st Respondent’s counsel submitted that the lower court predicated its decision to defer ruling on the Appellant’s Motion on Notice to quash charge on Section 396(2) of ACJA 2015, that the provision is part of the conscious innovations designed to promote the efficient management of Criminal Justice Administration in Nigeria. Dalhatu v. Turaki & Ors. (2003) LPELR-917 (SC).

In response to the Appellant’s counsel’s submission that the Court of Appeal should invoke its powers under Section 15 of the Court of Appeal Act to hear and determine Motion No. M/8989/2020, he submitted that the power is discretional. That the Court is expected to exercise the power only where the justice of the case before it demands that the power should be exercised. Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159.

Counsel for the 2nd Respondent submitted that it concedes to the fact that the decision of the learned trial Judge, which deferred consideration and determination of issues, raised in Motion on Notice No. M/8686/2020 to the conclusion of the Criminal proceeding pending before him amounted to breach of the Appellant’s right as guaranteed under Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
​
That the provision of Section 369 (2) of the ACJA should be struck down, declared unconstitutional, null, and void to the extent of its inconsistencies to the provision of Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

RESOLUTION OF ISSUES
On issue 1, the Court stated the statutory provisions as regards documents constituting public documents. That Section 102 of the Evidence Act, 2011 listed documents that constitute public documents. Furthermore, the Court emphasised the need for public documents to be certified before they can be admitted in any proceeding. The court cited Sections 104 and 105 of the Evidence Act, Kawu v. Minister FCT & Ors. (2016) LPELR – 41142 (CA).

The court held that any person who has a certified true copy of a document in his possession can tender it even though he is not a party to it. That a council may tender a certified true copy of a document from the Bar. Cited Paul Ordia v. Piedmont (1995) 2 SCNJ 175.

The court held that the Certified True Copy of the ruling of a Magistrate Court is a public document and can only be placed before the lower Court if it is duly certified and which in this case was duly certified.

On issues 2 and 3, the Court cited the provision of Section 396 (1) and (2) of the Administration of Criminal Justice Act, 2015. The Court explained that subsection 2 was introduced by the law to cure and curb excesses of Defendants and counsel who on any slight complaint about regularity or form of a charge do lockdown trials and take the matter through series of needless appeals and stall the prosecution of the offenders.

The Court stated that in the instant case, the appellant’s motion was geared towards enforcing or safeguarding his fundamental right under Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). That it is a prime constitutional provision that takes preference and precedence over any provision of an Act of
National Assembly or a law of the state.

The Court stated that Section 36(9) in its context forbids a Court from trying any person who shows that he had been tried by a Court of competent jurisdiction for a criminal offence and had been acquitted. That the law raises the defence of autre fois acquit.

The Court stated that the Motion No: M/8687/2020, filed by the Appellant and for which the lower Court heard, was meant to stop the Appellant from going into another trial since he showed that he had been tried for the same offence before. Therefore, the Court held that it was unconscionable for the lower Court to reserve the ruling until the same Appellant had gone through trying to be told whether he should be tried again or not. That it does not fit into the mold of Section 396(2) of the Administration of Criminal Justice Act. ​

With regards to the Appellant’s contention that the Court should invoke its power under Section 15 of the Court of Appeal Act, the Court stated that the lower Court is still seized of the substantive case, that it will be tantamount to one case being heard by the two Courts at the same time if this Court takes over the case. That Section 15 of the Act cannot be culled into this matter to enable the Court to hear the Motion already heard and a ruling is being awaited at the lower Court.

Also, in response to the 2nd respondent’s argument that the provision of Section 396(2) of ACJA should be struck down, declared unconstitutional, null, and void, the Court explained that the section was not specifically clamped to Section 36(9) of the Constitution or any of the provisions of the Constitution. That the provision of Section 396(2) of ACJA is a general provision, which is meant to ensure speedy trial of the case by the lower Court.

HELD
The Court of Appeal resolved the issues in favour of the Appellant; set aside the ruling and decision of the lower Court and ordered the lower court to admit the certified true copy of the ruling of the Magistrate Court into evidence and equally to consider and deliver a ruling in respect of the Motion no: M/8989/2020 before taking further steps in the proceeding.

Appearances:
Y.C Maikyau, SAN, with him, H.A Matunji, Esq. and O.O. Amadi, Esq. For Appellant(s)
Benjamin Manji, Esq. for the 1st Respondent
for the Respondent(s)
O.A. Dada, Esq. for the 2nd Respondent
Compiled by LawPavilion
eDIO