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DESMOND NWODO v. THE STATE CITATION: (2021) LPELR-54491 (CA)

In the Court of Appeal In the Awka Judicial Division Holden at Awka

ON TUESDAY, 16TH MARCH, 2021 Suit No: CA/AW/15C/2020

Before Their Lordships: CHIOMA EGONDU NWOSU – IHEME JUSTICE, COURT OF APPEAL ISAIAH OLUFEMI AKEJU JUSTICE, COURT OF APPEAL PATRICIA AJUMA MAHMOUD JUSTICE, COURT OF APPEAL

Between

DESMOND NWODO – Appellant(s) AND THE STATE – Respondent(s)

LEADING JUDGMENT DELIVERED BY PATRICIA AJUMA MAHMOUD, J.C.A. FACTS The appellant presented himself to the nominal complainant as Pastor Johnson Ezeh Peter. Under this guise, he received various amounts of money from the nominal complainant including the sum of N1, 200,000 towards procuring Chinese visa for two of the complainant’s brothers, which he never did. It was after the failure to procure the visas that the nominal complainant realized that the Appellant was deceiving him. Subsequently, the nominal complainant wrote to First Bank, the bank through which he sent money to the Appellant. The bank lured the Appellant to its branches from where he was arrested. The appellant was arraigned and tried on a one-count charge of obtaining by false pretenses contrary to Section 1 (3) of the Advance Fee Fraud and other Related Offences Act.

During the course of trial, the trial Court had reason to conduct a trial within trial. However, the appellant who was on bail was absent in Court, his Counsel sought for a stand down of the case to enable the appellant get to Court, which was refused. The trial Court also made an Order of Foreclosure against the appellant from testifying in the trial within trial and refused an application to recall the prosecution’s witness by the appellant’s Counsel.

After the close of evidence, in a considered judgment, the trial Court convicted and sentenced the appellant to seven (7) years imprisonment with hard labor without an option of fine. Aggrieved, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION The Court of Appeal determined the appeal on the following issues; Whether the learned trial Judge’s refusals of the application for a stand down to enable the Appellant get to Court and the trial of the appellant in his absence is a breach of the fundamental right to fair hearing and trial? Whether foreclosing the appellant from testifying in trial within trial and refusal of an application for adjournment by the learned trial Judge, is a breach of the fundamental right to fair hearing of the appellant? Whether the learned trial Judge’s refusal of the appellant’s application to recall a witness for further cross-examination amounts to a breach of right to fair hearing of the appellant?

APPELLANT’S SUBMISSSION Appellant’s counsel submitted on issue one that the trial Court’s refusal to grant the Appellant’s application for a stand down and its continuation with the Appellant’s trial in his absence amounts to a breach of his fundamental right to fair hearing and trial. Counsel referred to SECTION 36 (4) of the 1999 Constitution and the cases of OTAPO V SUNMONU (1987) 5 SCNJ, 57. Appellant’s Counsel referred to SECTION 300 of the Administration of Criminal Justice Law (ACJL) of ANAMBRA STATE, 2010 which mandates that every Defendant be present physically in Court during the whole of his trial, subject only to the exceptions contained in SECTION 427 of the Law. Appellant’s counsel contended that whether or not counsel objected to the trial in the absence of the Appellant, the purported trial is a sham and the conviction of the Appellant thereon is thus rendered a nullity.

On issue two, appellant’s counsel submitted that the action of the learned trial Judge in foreclosing the Appellant from testifying in the trial within trial by refusing the application for adjournment was a breach of his fundamental right to fair hearing. Counsel argued that the appellant who was granted bail was always present in Court except for the fateful day of February 27, 2018 and never breached any of the terms of the bail conditions. He cited SALU V EGEIBON (1994) LPELR – SC in support of this position.

On issue three, appellant’s counsel submitted that the learned trial judge’s refusal of the Appellant’s application to recall a witness for further cross-examination is not only contrary to Section 320 of the ACJL of Anambra State, 2010, but amounts to a denial of fair hearing pursuant to Section 36 (6) of the 1999 Constitution. Counsel referred to the cases of KAJAWA V THE STATE (2018) LPELR – 43911 (SC).

RESPONDENT’S SUBMISSION Respondent’s counsel submitted on issue one that the refusal by the learned trial judge of the application to stand down the matter for the appellant to be present in the trial within trial does not amount to a breach of the Appellant’s fundamental right to fair hearing as the Appellant did not proffer any reason for his absence from Court. Respondent’s counsel referred to the case of MGBENWELU V OLUMBA (2017) 5 NWLR, PT. 1558 177.

He further submitted that the appellant’s counsel was given the right to cross-examine the prosecution witness, the IPO (PW1) at the trial within trial and he indeed cross-examined him. He contended that the appellant’s counsel had applied to the Court to stand the matter down as the appellant was on his way to the Court. But that throughout the trial on February 27, 2018, the appellant never showed up in Court. Counsel argued that the appellant misconducted himself by absenting himself from Court in order to render the continuation of the trial impracticable. Counsel contended that this situation comes within the exceptions as provided under Section 427 (2) of the ACJL of Anambra State, 2010.

On issue two, respondent’s counsel submitted that from the record, several adjournments were granted at the instance of the appellant even without convincing reasons. Respondent’s counsel submitted that there must be an end to litigation as justice delayed is justice denied. That the appellant having been given the opportunity to be heard but refused to avail himself of such opportunity cannot be heard to complain of a breach of fair hearing.

On issue three, respondent’s counsel submitted that the application to recall a witness for further cross-examination is not to be given as a matter of right; ALLY V STATE (2009) LPELR – 51425 (CA). He contended that in the instant case, the appellant had already exhaustively cross-examined the witness. And the affidavit in support of the application lacks any fact to support the need or desire to recall the witness. Counsel contended that the application was just a ploy by the appellant to delay the trial.

RESOLUTION OF ISUSES The Court in resolving all three issues together held that although Section 36 of the Constitution does not directly proscribe trial in absentia, it is not part of our criminal jurisprudence for an accused person to be tried in absentia. The Court also held that Section 300 of the ACJL, Anambra State 2010 requires a defendant to be present throughout his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.

The Court cited OKAROH V STATE (1990) 1 SCNJ, 124 AT 132, where the complaint of the appellant that his absence at his criminal trial occasioned a miscarriage of justice was rejected by the Court; but held that that case was distinguishable from the instant case, as in this case, it was a trial within trial. The Appellant did not take part in it to defend himself, and so was not given a hearing before the trial Court decided on the alleged involuntariness of Appellant’s statement to the Police. The Court held that the doctrine of audi alteram partem was breached against the Appellant. The Court further held that the absence of the Appellant in Court may be a fair reason to revoke his bail and issue a bench warrant for his arrest, but it does not excuse the trial Court for proceeding with the trial within trial in the absence of the Appellant. See JSC of CROSS-RIVER STATE & ANOR V YOUNG (2013) 11 NWLR, PT. 1364, 1; AUDU V AGF & ANOR (2013) 8 NWLR, PT 1355, 175.

The Court also held that any proceedings conducted in breach of a party’s right to fair hearing no matter how well conducted will be rendered a nullity. See LEADERS & CO LTD V BAMAIYI (2010) 18 NWLR PT 1225, 329.

The Court held that the power to grant an application to recall a witness is at the discretion of the Court, which has to determine if the evidence appears to it essential to the just determination of the matter. But Defendants/Accused Persons in criminal matters are given more leeway than in civil matters. See SECTION 36 (6) (b) of the Constitution, which enjoins that every person charged with a criminal offence shall be given adequate time and facilities for his defence. The Court thus held that that the trial Court did not exercise his discretion judiciously and judicially in refusing the application for the recall of PW1 for further cross-examination, thereby breaching the Appellant’s right to fair hearing pursuant to SECTION 36(6) of the 1999 Constitution.

HELD The Court held that the appeal is meritorious and accordingly allowed same, but ordered the case be remitted to the Chief Judge of Anambra State for re-trial before another Judge. APPERANCES Chief E. C. Chikaelo With Him, Miss Chioma Ikeh – For Appellant(s) Mr. T. C. Ikena (Deputy Director, Ministry of Justice, Anambra State) – For Respondent(s) Compiled by LawPavilion