SUNDAY OKODUWA & ORS V. THE STATE (1988)

Alternative  Citations:

Okoduwa v. State (1988) NWLR (Pt.76) 333

In The Supreme Court of Nigeria

On Friday, the 29th day of April, 1988

SC.5/1987

Before Their Lordships

KAYODE ESOJustice of The Supreme Court of Nigeria

AUGUSTINE NNAMANIJustice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAISJustice of The Supreme Court of Nigeria

SALIHU MODIBBO ALFA BELGOREJustice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGUJustice of The Supreme Court of Nigeria


Between

1. SUNDAY OKODUWA
2. PATIENCE AGHAMELO
3. PATRICK OGUN
4. ANTHONY UGBOKE
5. AUGUSTINE OBOH
6. KENNEDY IYINBOR     Appellant(s)

AND

THE STATE     Respondent   

…………………….A…………………….A. NNAMANI, J.S.C. (Delivering the Leading Judgment): This case was originally fixed for judgment on 10th March, 1988. On that date, it seemed to the Court that it was necessary to take further address by Counsel on the consequential order the Court ought to make in the event of the appeal being allowed.
Further argument was taken on 14th April, 1988. At the end of that argument, and having previously read the record of proceedings, the briefs filed by counsel as well as the earlier addresses of counsel, I allowed the appeal, set aside the judgments of the High Court and the Court of Appeal. I ordered that the Appellants be tried before another Judge of the High Court of Bendel State. I indicated that I would give my reasons for this judgment on 29th April, 1988. I now give my reasons.
In suit No. U/9C.81 at the High Court of Bendel State, UBIAJA Judicial Division, the Appellants, Sunday Okoduwa, Patience Aghamelo, Patrick Ogun, Anthony Ugboke, Augustine Oboh, Anthony Usman Gogo and Kennedy Iyinbor were charged with the following offence:-
“Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree, No. 47 of 1970.
Particulars of Offence
Sunday Okoduwa……………………………………
………………………………………
……………………………………….
……………………………………….
on or about the 20th day of May, 1980, at Uromi in the Ubiaja Judicial Division robbed one Madam Abiba Yayah of the sum of N9,794.00 cash, coral beads worth N46,000 and Gold Trinkets worth about N7,000 and at the time of the robbery you were armed with offensive weapons to wit guns and axes”
At the trial before Ohiwerei, J. 10 witnesses testified for the prosecution. These included the complainant who testified as P.W.6 and her son who testified as P.W.2. The Accused persons gave evidence and some of them called witnesses. Their defence was mainly alibi. At the close of the trial, the learned trial Judge found 6 accused persons, Appellants herein, guilty and sentenced them to death by the firing squad or hanging. An appeal to the Court of Appeal, Benin Judicial Division, was unsuccessful hence the appeal to this Court. All the Appellants filed grounds of appeal which must have been drawn up with the assistance of Prison Officials. However, on the 23rd October, 1987, learned counsel for the Appellants, Mr. B. Olaogun obtained leave of this Court to file and argue additional grounds of appeal.
Two additional grounds of appeal were filed in favour of 2nd Appellant, 2 in favour of 3rd Appellant, and 3 in favour of all the Appellants. Both Mr. Olaogun, and Mr. Edokpayi, learned counsel to the Respondent filed well written briefs of argument for which I must commend both counsel.
In his brief of argument, learned counsel to the Appellants, Mr. Olaogun, identified 6 issues for determination in this appeal. These were –
“1. Were the findings of fact made by the trial Judge and the subsequent affirmation of such finding by the Court of Appeal perverse?
2. Were the defences of alibi put up by the Appellants properly rejected by the trial Court?
3. Did the Appellants offer any defence which the trial Court and the Court of Appeal failed to consider and were the Appellants, properly convicted?
4. Was any defence disclosed by the record which the trial Judge and the Justices of the Court of Appeal failed to consider?
5. Were the Appellants given or denied fair hearing by the trial Judge and/or the Justices of the Court of Appeal?
6. Was the unequivocal affirmation of the Appellants conviction and sentence by the Court of Appeal justifiable in the circumstances of this case?”
The Respondent’s brief has set the issues for determination more concisely, and for the purposes of this appeal only one issue there is relevant. This was-
“Whether the defence of alibi raised by each of the six appellants was adequately and rightly rejected by both the learned trial Judge at Ubiaja and their Lordships in the Court of Appeal”
Both learned Counsel addressed the Court in amplification of their brief. Mr. Olaogun, in oral argument, referred to Exhibit P, the statement of 2nd Appellant to the Police in which her age was recorded as 14 years and also to her testimony at p.107 lines 16-17. He next referred to the alibi raised by the 2nd Appellant in her statement to the Police. He contended that this alibi was never checked by Sgt. Atafo P.W.4 before handing over the case to Sgt. Iyoro. He claimed the 2nd Appellant showed the room where she slept with her uncle on the fateful night. He also complained that, although the Police took statements from the father and mother of the 2nd Appellant, they never called them to give evidence. Mr. Olaogun then concentrated on the manner the learned trial Judge handled the trial referring the Court to portions of the Record where the learned trial Judge in his contention descended into the arena by indulging in extensive cross-examination of defence witnesses, or even cross-examining witnesses not cross-examined by learned Director of Public Prosecutions’ of Bendel State who represented the State. He referred the Court to the cases of David Uso v. Commissioner of Police (1972) 11 S.C. 37 and Yuill v. Yuill (1945) 1 All E.R. 183.
In his address, Mr. Edokpayi concentrated on the issue of discharge or retrial of the Appellants following hints dropped by the Court. He submitted that this was a proper case for remitting to the High Court for trial by another High Court Judge. He conceded that the Appellants had been in custody for over 7 years from May 1980. He addressed the Court too on the manner the learned trial Judge handled the trial. He referred the Court to pp.61, 66 and 69 of the record as to the issue of Contempt of Court.
It seems to me that this appeal can be disposed of only by considering additional ground 2 of the grounds of appeal which Mr. Olaogun argued in his brief of argument at length on behalf of all the Appellants. That ground complained that –
“The learned Justices of the Court of Appeal erred in law and on the facts in affirming the conviction and sentence of death passed on each of the Appellants when there is glaring evidence that the Appellants were not given fair hearing.…………………….B…………………….

Particulars
The 1st, 2nd, 3rd, 4th, 5th and 6th Appellants were not given fair hearing and/or fair trial contrary to Section 33 of the 1979 Constitution of the Federal Republic of Nigeria when their Lordships held and I quote –
(i) “In my view and judging from what actually transpired, as recorded……………the Courts Ruling.”
The whole question relates to the proceedings before Mr. Justice Ohiwerei at the Ubiaja High Court. The complaint had two parts – the contempt charge which the trial Judge planted on learned counsel for the 2nd, 3rd and 5th Appellants in the trial Court, and the effect of that charge on all the Appellants; secondly, the persistent interference in the case by the trial Judge.
As regards the first issue, the problem arose when the Appellants in High Court applied to the, High Court for transfer of their cases to Benin City for trial by Ogbobine, J. At page 61 of the record, Mr. Ehichoya of counsel for the 2nd, 3rd and 5th Appellants stated as follows:-
“I have the instruction of my clients that they do not want this case to be tried before this Court any longer. They expressed fears that they will not receive fair trial. They say if the Court insists on going on with this case they will dispense with my services and hire another counsel of their choice. That is all they told me”
Thereupon 1st, 4th and 6th Appellants all made applications for transfer based on their fear that they would not get justice. As 6th Appellant put it-
“I feel something is going wrong in this case. I know that there is no Court where justice is perfect but I would like this case transferred to High Court, Benin-City.”
In his ruling on pages 65 to 69, the learned trial Judge said-
“I then adjourned the matter to the following day – that is Friday 22nd April, 1983. Immediately after the adjournment Mr. J. S. Ehichoya, counsel to the 2nd, 3rd and 5th accused persons in a burst of anger said sarcastically to the hearing of everybody in Court that if the statement sought to be tendered by Mr. Omo Ehizogie would not be admitted the accused persons might as well plead guilty. I took a mental note of what he said. I however dismissed it as a cowardly effusion because I gave no indication whatsoever what my ruling was likely to be………………………From the totality of the complainants (sic) of the accused persons do not see that they have made any case at all to justify a transfer of this case to another court .. . . . . . . . . . . . . . . . ..Mr. Ehichoya was not only misleading the accused persons but misleading and making a fool of the court.”
Then on page 69 the learned trial Judge ordered Mr. Ehichoya to enter the witness box to show cause why he should not be punished for contempt of court. He went on –
“Mr. Ehichoya, you have heard the ruling of this court in respect of your application and those of the other accused persons. The charge against you is that you conspired with the accused person to impugn the integrity of this court and by making an unjustifiable application to transfer the trial of the accused to High Court presided over by Hon. Justice R.A.I. Ogbobine on the unsubstantiated ground that the accused persons would not receive a fair trial in this Court”
Mr. Ehichoya said that he was very sorry. The court recorded as follows:-
“Mr. Ehichoya burst into the (sic) tears and unable to say anything further”
After consultations were held between all the counsel and the learned trial Judge in his chambers, the learned trial Judge magnanimously cautioned and discharged Mr. Ehichoya. The learned trial Judge then addressed the accused persons, asking them whether they wanted to appeal against his ruling, or they wanted the trial to continue.
It is difficult to see from the record what justified the humiliation that was meted to Mr. Ehichoya. His crime appears to have been that he had the courage to apply, on the instruction of his clients, for the case to be transferred to High Court Benin.
Bursting into tears and total loss of words to me indicates the measure of injustice to which Mr. Ehichoya believed he was being subjected. It was not quite clear on what the learned trial Judge predicated his conclusion that Mr. Ehichoya had conspired with the accused persons to impugn the integrity of the Court. It is settled that it is not contempt of court to criticize the conduct of a judge or the conduct of a court even if such criticism is strongly worded provided that the criticism is fair, temperate and made in good faith See R. v. Metropolitan Police Commissioner ex parte Blackburn (No.2) (1968) 2 Q.B. 150; (1968) 2 All E.R. 319. Also Perere v. R. (1951) A.C. 482.
From what appears later in this judgment as to the undue intervention of the learned trial Judge in the proceedings, it cannot be said that the request for transfer was not a fair one, nor can it be said that whatever implied criticism of the court was contained in the request for transfer, was not fair and was not conveyed in civil and temperate language. The bludgeoning of counsel had its desired effect as I shall show hereunder. The conduct of the learned trial Judge was not only unfair but it was exceedingly high handed. It is hereby deprecated.…………………….C…………………….

As implied earlier, the manner in which the learned trial Judge dealt with him could not have been lost on the other counselor on the accused persons. I do therefore agree with Mr. Olaogun that the proceedings induced fear in the accused persons and their counsel. This could not have led to a fair trial. But the more important complaint is the persistent interference of the Judge in the case. He cross-examined witnesses for the defence at length and often took over the role of the prosecutor. The records are replete with instances of this, but I shall only refer to a few of them. At page 12 of the record, Mr. Edokpayi, learned Senior State Counsel, had indicated that he did not wish to re-examine a prosecution witness, P.W.1, when the learned trial Judge asked questions from which he elicited the following answers-
“Clara told me that the 1st accused took her to the Hotel at 9p.m and had sexual intercourse with her twice. She said she thereafter slept off and could not say whether the 1st accused left her and went out while she was asleep. She said she slept off and did not wake up till 7 a.m. the following day. Clara told me that she is a native of Arne, Uromi and that she lives there”
Again at page 120 of the records, the learned Director of Public Prosecutions of Bendel State had finished cross-examining the 6th Appellant’s witness when the learned trial Judge took over. His cross-examination filled 10 lines of the record and were presumably intended to destroy the credit of the witness. Then at page 17 of the record the learned trial Judge made an observation which covered about 1 1/2 pages. His grouse was that a prosecution witness, Sunday Osoyinbo, appeared to have bought a pair of slippers for the 1st Appellant. He expressed surprise that a prosecution witness should have close dealing with an accused person who was brought from prison custody to court that morning. He ordered that a warrant of arrest be executed on Sunday Osoyinbo. Then finally at pages 215 – 216, of the record, the 1st, 2nd, 3rd, 4th and 5th Appellants had alleged in paragraph (c) of ground 1 of their appeal to the Court of Appeal that there was constant and numerous crucial cross-examination of the prosecution witnesses, the Appellants and their witnesses before and after their objection to being tried at Ubiaja had been duly considered and refused by the learned trial Judge. They referred to pages 12 lines 9 – 15; 26 lines 5 – 19; 39 lines 11 – 23; 41 lines 1 – 32; 44 lines 21 – 24; 45 lines 9 – 10; 46 lines 15 to 17; 58 lines 19 – 26; 64 lines 20 and 21; 64 lines 23 – 24; 64 lines 27 – 28; 65 lines 11 – 32; 66 lines 1 – 32; 67 lines 1 – 32; 68 lines 1 – 32. Then at pages 70, 80, 84, 96, 101, 112, 113, 116, 119 and 120.
It is clear that a Judge is entitled to take part in proceedings before him by way of questions he may need to ask for clarification of certain issues. This is, however, different when as shown above, the learned trial Judge virtually took over the role of the prosecution; worse still, he used the results of his own cross-examination to arrive at the conclusions that could be seen in his judgment. Thus his conclusion as regards the 1st Appellant at page 155 of the record –
“Added to this unbelievable story is the fact that the 1st accused said that because Rebecca, whom he claimed to be his girl friend, could not spend the night with him, she (Rebecca) allowed her visitor and friend to go away with him. In the first place, no girlfriend would readily agree to share her boyfriend with another girl. In the second place, I do not think the 1st accused, who had three wives, could be so starved of sexual intercourse that he was prepared to take the risk of having sexual intercourse with a girl whose antecedent history or particulars he did not know…………………His story is a tissue of lies. I completely reject it.”
It seems quite clear to me that the learned trial Judge jumped into the arena. In David Uso v. Commissioner of Police (1972) 11 S.C. 37 Elias C.J.N. (as he then was) said at page 46-
“In our system of criminal trial, the Judge as umpire is not expected to descend into the arena. This illustrates the difference between the accusatorial and inquisitorial methods of trying an accused person”
In Yuill v. Yuill (1945) 1 All E.R. 183, although the Court of Appeal held that the part a Judge should take during examination of witnesses lay in his discretion and a retrial would not be ordered merely because the Judge took a large part in the examination of witnesses, Lord Greene M.R. said at page 185,
“The part which a Judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. But with the utmost respect to the Judge it was, I think, unfortunate that
he took so large a part as he did………………………It is of course, always proper for a Judge – and it is his duty – to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are certain matters which the Judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course take steps to see that the deficiency is made good. It is I think generally more convenient to do this when counsel has finished his questions or is passing to a new subject……………..…………………….D…………………….

Then at page 189, he continued-
“A Judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a Judge who himself conducts the examination. If he takes the latter course, he, so to speak, descends into the arena and is liable to have his vision beclouded by the dust of the conflict”
It is my view that, taking the learned trial Judge’s excessive interference, together with his bludgeoning attitude to counsel, witnesses and the Appellants, it cannot be said that the Appellants had a fair trial. The right to a fair hearing is at the root of a just and fair administration of criminal justice. An absence of it always amounts to grave injustice in a matter in which the liberty of the citizen is very much in issue. It is for this reason that the Constitution has given it due importance. Section 33(4) provides that-
“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time”
What constitutes fair hearing has been the subject of decisions by this Court. In Ariori v. Elemo (1983) 1 S.C. N.L.R. 1, Aniagolu, J.S.C. said of it at page 28 –
“Fair hearing of which speedy trial is one of the factors that go to make it fair, is therefore, in my view, a right involving the public policy that judicial proceedings shall not fall below a certain standard namely, a standard that trials of cases must be fair.
Put more directly, the question as has been settled many years ago by this Court is whether a reasonable man looking at the whole proceedings would think that the accused persons have had a fair deal. I would say they have not. With all the aggressive cross-examination, and the fear put in their hearts by the way the learned trial Judge dealt with Ehichoya of counsel, the Appellants had anything but a fair trial. The learned Justices of the Court of Appeal obviously thought-differently:-At page 321 Ajose-Adeogun, J.C.A. observed –
“The Court has a duty to defend or protect its integrity impartiality and above all its honour and respect. Having done that and considering the step taken to allay the unwarranted fears of the Appellants and restore their confidence in the continuation of the trial, as quoted above, it will be inappropriate or indeed even erroneous to attempt to describe the rest of the proceedings as amounting to an unfair hearing and/or trial. In my view, and judging from what actually transpired – as recorded even if one were to adopt the test, postulated in the case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 at 426 (per Ademola, C.J.N.), based on “the impressions of a reasonable person who was present at the trial, whether from his observation justice has been done in the case” the answer must surely be in the positive. This is more so in view of the latitude or choice given to each accused person after the Court’s ruling”
With all respect, I totally disagree with the learned Justice of Appeal. I have already given reasons for the view I hold. This is certainly enough to dispose of this appeal though there is still the matter of what order to make i.e. either one of discharging of the Appellants as submitted by Mr. Olaogun, or one of retrial as submitted by Mr. Edokpayi.
It is clear that what has happened here is not such an irregularity as to render the trial of the Appellants a nullity. What has happened can at best be described as a mistrial. In such a case this Court has power either to order a retrial or to quash the convictions and allow the Appellants to be discharged. State v. Lopez (1968) 1 All N.L.R. 356. Which option the Court will follow will be determined by principles set down by this Court in several cases. In Gwonto v. The State (1983) 1 S.C.N.L.R. 1. This Court was concerned with an irregularity in that Section 33(6)(e) of the 1979 Constitution of Nigeria was not strictly followed. The Court neither quashed the conviction of the Appellants nor ordered a retrial. The Court was not satisfied, having regard to the circumstances of that case, that there was a failure of justice. But it is in the earlier cases that the principles governing the question of a retrial crystalised. In Abondundu v. The Queen (1959) 4 F.S.C. 70. The Federal Supreme Court stated the principles thus:-
“Although the rules guiding an appeal court in ordering are-trial are not exhaustive and may be added or modified from time to time, an appeal court would order a retrial if it is satisfied as to the following:-
1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say that there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.…………………….E…………………….

3. That there are no special circumstances which would make it unjust to put the accused on trial a second time.
4. That the offence for which the accused is charged and their consequences are serious in nature, and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it”
This case was followed in Okegbu v. State (1979) 11 S.C. 1 where this Court decided that an order for retrial must depend on the circumstances of the particular case. Matters to be considered included, the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone for a second time by the prisoner, the lapse of time since the commission of the offence, and its effect on the quality of evidence and the nature of the case of the prosecution against the prisoner as disclosed in the evidence of the first trial; whether substantial or not. See also Ankwa v. State (1969) 1 All N.L.R. 133 and Okafor v. State (1976) 5 SC. 13. Looking at the instant case, the charge against the Appellants is indeed a grave one -armed robbery punishable under Section 1(2)(a) of the Act. The penalty is death by hanging or firing squad. From the evidence of the complainant P.W.6. over Nine thousand Naira in cash was stolen. Also stolen were coral beads worth N46,000 and gold worth N7,000. None of these has been recovered. Besides, if the testimony of P.W.6 and her son P.W.2 is to be believed, and indeed two Courts have believed them, that they were terrorised by hoodlums wielding guns and axes. It is a matter of common knowledge that armed robbery is prevalent in our Society and indeed has become a scourge which must be attacked at every turn. I am of course aware that the Appellants have been in custody for 7 years and have undergone the trauma of the trial the proceedings of which I have dealt with above. Nevertheless, having regard to the severity of the ultimate penalty should they be found guilty in retrial, I do not think that such a retrial would be oppressive. As to whether the case against the Appellants is substantial, or put differently whether the evidence on the record discloses a substantial case against the Appellants to justify a retrial, I cannot deal with this in any detail, as having regard to the conclusion, I am about to reach, it may prejudice their case. Nevertheless, I may just say that the testimony of PW6 does raise a strong prima facie case against the Appellants. The defence of all the Appellants was alibi. This Court recently revisited the principles governing the defence of alibi in Wasari Umani v. The State (1988), 1 N.W.L.R. (Pt. 70) 274. Mr. Olaogun has made powerful submissions in his brief as regards the defence of alibi raised by the 2nd Appellant. It was contended that the alibi she raised in her statement to the Police, Exhibit P, was not investigated. For the 3rd Appellant, it was contended that the testimony of his wife and brother that he was at home on the night of 20/5/80, was not controverted.
As regards the 2nd Appellant, I merely wish to add that it is not true that her alibi was not investigated. P.W.4, Sgt. Atafo, actually stated that he visited Uzea to check on her visit there. He was only unable to visit Benin City to check on her claim that she also visited the City. Besides,
P.W.4’s testimony at page 35 that-
On 21/5/80 the 2nd accused took me and Inspector Adamu to Uzea. When we got to Uzea the 2nd accused could not show us where and whom she visited at Uzea. She could not also show us Clara Okojie or Clara’s house”
shows that the 2nd Appellant’s alibi is not cast iron. Furthermore, Mr. Edokpayi has drawn attention to the conflict between the alibi she raised in her statement to the Police and that in her testimony in Court. The words of Coker, J.S.C. in Kamara Alimi Adio vs. The State (1986) 6 S.C. 119 at 121-112 appears to me apposite. It is true that it is established that once an accused person discharges the evidential burden of adducing evidence of an alibi, the onus is on the prosecution to disprove it. It is equally true, though, that there is a duty on the trial Judge to test the alibi against the evidence adduced by the prosecution. In this case the positive evidence of P.W.6 would have to be tested against the alibis set up by the Appellants. If of course there is still any doubt in the trial Judge’s mind, it would be resolved in the Appellants’ favour. See Oriese nor and Ors v. The State (1965) N.M.L.R. 337; Patrick Njovens and Ors v. The State (1973) 5 S.C. 17 at 85. There is in my view a substantial case against the Appellants as disclosed in the evidence at the earlier trial. The result is that this appeal succeeds, and is allowed.
The judgments of the High Court, Ubiaja Judicial Division and the Court of Appeal, Benin Judicial Division are hereby set aside. It was for these reasons that I allowed the appeal of the Appellants, but ordered that the Appellants be arraigned for re-trial before another Judge of the High Court of Bendel State.K. ESO, J.S.C.: I have had the privilege of a preview of the Reasons for Judgment which have just been delivered by my learned brother Nnamani, J.S.C. I have the honour to agree with these Reasons and would only add a few words for emphasis on the issue of the order we have made in this case especially as we considered it necessary to recall counsel to address us on the issue.
Once we have come to the conclusion that the Appellants had no fair trial, the issue that follows is whether there should be another trial or that the Appellants, having regard to the circumstances, should be left off.
In Abodundu v. The Queen (1959) 4 FSC p.70, the Federal Supreme Court had set out five principles which must be cumulative before an accused person in such circumstance could be put on trial again.…………………….F…………………….

They are
“1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say that there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence before the Court disclose; a substantive case against the accused;
3. That there are no special circumstances which would make it unjust to put the accused on trial a second time;
4. That the offence for which the accused is charged and their consequences are serious in nature; and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.”
It is on the fourth principle I would like to comment. How is it to be measured whether an offence for which an accused is charged is serious in nature? It is my respectful view that a subjective test must be employed in determination thereof. The times must be taken into consideration. By this I mean, the particular times in the socio-economic and political period of the country must be taken into consideration before determining whether the offence and the consequences are serious in nature. For instance, if it is during an election period, an act of thuggery which, in non-electioneering period, might be viewed lightly should wear another garb – a garb of seriousness.
It would cease to be a mere assault or conduct likely to cause breach of the peace, which it could otherwise have been in a normal climate. It would also become an offence, serious in nature, during such times as strikes, mass resistance to authority or political disturbance.
To come to the present case. It is a case of armed robbery. At this point in time, in this country, armed robbery has become excessively serious. This is a notorious fact and it has to be so viewed. Nobody is safe day or night from the attack of the armed robber. Law, after all, does not exist in theory or in vaccuo. It has to be functional. Functionality demands recognition of the problems of the times and these problems vary from time to time.
For these reasons, and the reasons given by my learned brother Nnamani J.S.C., I would abide by the order of retrial of the Appellants. They are to be arraigned before another Judge (that is a Judge other than the Trial Judge in the case) in the High Court of Bendel State.

M. L. UWAIS, J.S.C.: On the 14th April, 1988 we allowed this appeal after hearing further argument on what consequential order the Court should make if the appeal should be allowed. And at the same time reserved till today our reasons for doing so. I now state my reasons.
I have had a preview of the judgment read by my learned brother Nnamani, J.S.C. I agree with the reasons. As it was for the same reasons that on the 14th April, 1988. I allowed the appeal and ordered are-trial of the Appellants before another Judge of the High Court of Bendel State, I do not desire to add anything. I adopt the said reasons as mine.

S. M. A. BELGORE, J.S.C.: I have read in advance the reasons for judgment given by my learned brother Nnamani, J.S.C., with which I agree. The Appellants, I must concede, had no fair hearing at the trial Court. The duty of every trial Court, whether in civil or criminal jurisdiction, is to hold even balance between the contending parties. Nothing must be done to manifest bias in the hearing of evidence. The parties, having secured the services of counsel, have in all matters before the Court placed their confidence in this officer of the Court that nothing must threaten his carrying out before the Court, his clients’ instructions. Once his conduct is not in contempt, interference with his independent examination of a witness or submission on a matter before the Court is diametrically averse to our notion of fair trial. A fortiori if the counsel is threatened with punishment in form of conviction for doing his lawful duty of representing his client. What the trial Judge did in this case, to say the least is unconscionable of his function of holding an even balance. The record of proceedings is replete with his constant interference and cross-examination of witnesses to elicitate facts that he relied upon heavily, in arriving at his decision. He no doubt descended into the arena. For the foregoing reasons, the Appellants, to my mind, never had a fair hearing. Hearing certainly there was, but it was not fair hearing. It is like being not heard.
When a trial is unfair, it must be set aside. That is what is just; but the only justice of a case is it the Court is fair to both sides. No party to a matter in Court must leave the Court without having justice done to him. In this case now on appeal, there was a trial, even though vitiated by unfairness, it is not void nor was it a nullity. It is different from Sele Eyorokporomo & Another vs. The State (1979) 6-9 S.C. 3 and Onuokafor vs. The State (1976) 5 S.C. 13, where the appeals were allowed on ground of nullity. As there were no trials, trials were ordered. Retrial is only ordered where a trial is defective; no retrial is possible where there was no trial. It appears that many a time the Court is referred to the case of Abodundu and 4 Ors. v. The Queen (1959) 4 F.S.C. 70,73, as if that decision lays down more principles than it really does. It is pertinent to restate what the Federal Supreme Court said in that judgment:…………………….G…………………….

“We have therefore (and as this is one of the first cases in which the exercise of the power to order a retrial has been argued in this Court endeavoured to formulate the principles on which this
Court should act in considering the exercise of that power. In formulating these principles we do not regard ourselves as deciding any question of law, or as doing more than to lay down the lines on which we propose to exercise a discretionary power. It is impossible to foresee all combinations of circumstances in which the question of ordering a retrial may arise, and it may be that further experience will lead us to formulate additional principles, or to modify those we have formulated in this judgment. We wish to make it clear that the Court will be free to do this without infringing the doctrine of judicial precedent.”
It is, given the present state of our law, impossible to lay down precisely and exhaustively what the circumstances are that must influence the Court ordering retrial. So many factors are called into consideration and some matters that must be given weight in one situation may be trivial in another matter. The decisive facts vary from case to case; but it is safe to state that the entire case must be viewed in its peculiar or special circumstance.
Perhaps statute will one day lay down special provisions on this subject of trial and retrial to save the Courts the agony of looking into the entire circumstances of a case. But until then, the category of circumstances influencing order for retrial is not closed and Abodundu’s case does not pretend to establish hard and fast principles.
I therefore find that circumstances of each case dictate what the appellate court shall do. In the case of a trial vitiated as in this case by some unfortunate incidents, the gravity of the offence does not influence order for retrial but the principle that justice must be done will influence that order. I am of the view that this case, unfortunate as it is by its conduct during trial, requires justice; justice for the accused as well as justice for the public. There was a bad trial which my learned brother in the lead reasons for judgment likened to mistrial. There must therefore be a trial and ordering retrial satisfies this. It was for the reasons advanced above and for the fuller reasons given by my learned brother, Nnamani, J.S.C. High Court of Bendel State, presided over by a Judge other than Ohiwerei, J.

P. NNAEMEKA-AGU, J.S.C.: I hereby also give my reasons for allowing this appeal on the 14th of April, 1988. The appeal itself raised some points of most fundamental importance in the administration of justice. It brings into focus the important issue of fair trial as well as the scope and limitations of a Judge’s power to put questions to a witness called by either party to a criminal prosecution.
Appellants appealed against the judgment of the Court of Appeal confirming their conviction by the learned trial Judge, each upon various grounds contained in their notices of appeal. Their counsel in this Court sought and obtained leave to argue on their behalf additional grounds of appeal. While I agree with the opinion of my brother, Nnamani, J.S.C., on the merits of the case, I hold a different opinion as to the final order that ought to be made. I shall also decide this appeal on Ground 2 of the common additional grounds of appeal filed and argued for and on behalf of all the Appellants. That ground complains that all the Appellants were not given a fair hearing as required by section 33 of the Constitution of 1979. I shall limit myself only to a summary of the aspects of the facts of the case that can make my comments on this single issue intelligible. The record bears evidence that the learned counsel for the defence, particularly Mr. J .S. Ehichoya, the learned counsel for the 3rd, 4th and 5th Appellants had quite a rough time at the court of trial. At a certain stage all of them and their clients applied that their case be transferred to another Judge in Benin for trial on the expressed fear that they could not get a fair trial in the hands of the learned trial Judge. They gave their various reasons for the fear and the application. The learned trial Judge over-ruled the application for transfer. In the course of the ruling he expressed the view that it was the learned counsel for the 2nd, 3rd and 5th Appellants, Mr. Ehichoya, who masterminded the application for transfer. It is true, however that the other two defence counsel in the case, Messrs Ekperobe and Eromosele, also joined in the application. It is true also that the 1st, 4th and 6th accused persons boldly spoke at length before the learned Judge why they wanted a transfer of the case. But immediately after the ruling refusing the application for transfer, the following was recorded:
“Court: Mr. Ehichoya remove your wig and gown and get into the witness box and show me cause why you should not be punished for contempt of Court.…………………….H…………………….

Note: Mr. Ehichoya goes into the witness box.
Court: Mr. Ehichoya, you have heard the ruling of this Court in respect of your application and those of the other accused persons.
The charge against you is that you conspired with the accused persons to impugn the integrity of this Court and by making an unjustifiable application to transfer the trial of the accused to High Court presided over by Hon. Justice R.A.I. Ogbobine on the unsubstantiated ground that the accused persons would not receive a fair trial in this Court.
Mr. Ehichoya: I am very sorry.
Court: Mr. Ehichoya burst into tears and unable to say anything further.
Note: Court rose. The other five Counsel in Court later invited to Chambers. Mr. Ehichoya was allowed in too. After discussion of the matter Court resumed sitting.
Court to Mr. Ehichoya: I am satisfied that you have shown penitence for your action. You are a young industrious lawyer. I want you to understand that you are an officer of Court and that a Counsel’s duty to Court is paramount. I do not want to mar your professional career as a lawyer. You are cautioned and discharged.
Mr. Ehichoya: I am very grateful to your Lordship.”
I must pause here to make some observations on the whole contempt proceedings. The learned Judge obviously proceeded on the assumption that Mr. Ehichoya committed the alleged contempt ex facie curiae and hence could be punished brevi manu. But the whole foundation of the charge tottered and crashed on the allegation that he “conspired with the accused persons to impugn the integrity of the court.” Surely,conspiracy is a matter of evidence. Unfortunately there was no scintilla of such evidence. There is, indeed, no allegation or proof that the alleged conspiracy took place in court or within the precincts thereof. If the Judge had personal knowledge of such a conspiracy, he would have been a necessary witness in proof before another court or tribunal: he could not be both a witness and a Judge at the same time. Ordinary common sense dictates that the power of a High Court to deal brevi manu with contempt of its own proceedings is limited to contempt committed in the face of the court. For a similar position in England, see, R. v. Lefroy 36 W.R. 589, at p. 797; R. v. Jordan L. R. 8 Q.B. 134. Any other form of contempt will require evidence. Viewed from this perspective, it appears clear to me that the learned Judge’s invocation of his power to punish for contempt of his court in the circumstances of this case is an unwarranted exhibition of naked judicial power. That should have been avoided. After all the rationale for contempt is the need to vindicate the dignity of the Court and thereby protect due administration of justice, rather than to bolster the power and dignity of the Judge as an individual: see Ship worth’s Case (1873) L.R. 9 D.B. 230, at p.232. Worse, by such an unwarranted exhibition of naked judicial power which put counsel and their clients in fear of the court, an important trammel of fair trial had been eroded.
One point we must always bear in mind is that fair hearing incorporates a trial done in accordance with the rules of natural justice. And natural justice in the broad sense of justice done in circumstances which are fair, just, equitable and impartial. This aspect of natural justice carries with it the implication that justice should not only be done but should manifestly and undoubtedly
be see to be done. See R. v. Rand (1866) L.R. 1 Q.B. 230; per Blackburh, J., R. v. Sussex Justices ex p. McCarthy (1924) 1 K.B. 256, per Lord Hewart at p. 259; R. v. Thames Magistrates Court, ex p. Polemis (1974) 1 W.L.R. 1371 at p. 1375. The situation, as borne out by the record, is that in this case, the learned Judge was both accuser, witness and Judge at the same time. There was indeed no other accuser or witness to the charge of conspiracy than himself, even though there was no suggestion that it took place in his presence. He had to bring down the whole weight of his judicial authority upon counsel and subjugated all the accused persons to submission to his adjudication, after they had dared to apply for transfer to another court! For myself I do not see how a counsel who had been humiliated like Mr. Ehichoya was in court in that case and reduced into a weeping suckling could stand his ground and insist on justice for his clients. Nor how the other counsel could have summoned courage to do the same in the atmosphere that had been created.
In my judgment, fair hearing must include giving to a party or a legal practitioner of his choice the opportunity to present his case before an impartial court or other tribunal in an atmosphere free from fear and intimidation.
For what I have said, it could not be said that either counselor their co-accused who were all standing trial on a capital charge were given the necessary atmosphere for fair trial. When the learned Judge later virtually took over the role of the prosecution by virtually taking over the examination and cross-examination of most of the witnesses, including the Appellants themselves a point I shall consider in greater detail later on-the trial was turned into a mockery. I cannot over-emphasize the fact that in our adversary system of administration of justice the freedom of counsel to put across his, client’s case without fear or favour, is a most important ingredient. That element was very much lacking in this case.
There are certain fundamental norms in the system of administration of justice we operate. That system is the adversary system, in contradistinction to the inquisitorial system. In that adversary system parties, with their counsel, and the Judge have their respective roles to play. Basically, it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules. Under no circumstance must a Judge under the system do anything which can give the impression that he has descended into the arena, as, obviously, sense of justice will be obscured. “This is the necessary inference from all the decided cases on the point. See, for examples, Fallon v. Calvert (1960) 2 Q.B. 201, at p.204 In re Enoch v. Zaretsky Bock & Co’s Arbitration (1910) 1 K.B. 327. Jones v. National Coal Board (1957) 2 All E.R. 155. Omoregbe v. Lawani (1980) 3 – 4 S.C. 108 at pp. 120-121. In re Enock’s Case (supra), Fletcher – Moulton, L.J., at p.627 summarized the underlying principles where be said:
“A Judge has nothing to do with the getting up of a case.”…………………….I…………………….

Another complaint of the learned counsel for the Appellants is that the learned Judge substantially took over the prosecution of the case and examined and cross-examined the witnesses as well as the Appellants at will. At places his questions were more devastating to the defence than those asked by the D.P.P. himself and often dealt with facts which were not dealt with by either side. By so doing he quit his position of an impartial umpire and descended into the arena of the forensic conflict.
Now learned counsel’s particular (c) in the Grounds of Appeal before the Court of Appeal at page 215 – 216 of the record makes an interesting reading. It states:
“There were constant and numerous crucial cross-examination of the prosecution witnesses the Appellants and their witnesses before and after their objection to being tried at Ubiaja had been duly considered and refused by the trial court from the following pages and lines from the proceedings itself. Page 12 lines 9 to 15, page 26 lines 5 to 19, page 39 lines 11to 23, page 44 lines 21 to 24, page 45 lines 9 to 10, page 46 lines 15to 17, page 58 lines 19 to 26 page 64 lines 20 to 21 page 64 lines 23 to 24 page 64 lines 27 to 28, page 64 lines 30 to 31 page 64 lines 33 page 65 lines 1 to 4 page 65 lines 11 to 32 66 lines I to 32 page 68 lines 1 to 32 page 69 lines 1 to 33 page 70 lines 5 to 6 page 70 lines 7 to 33 page 80 lines 29 to 32 page 84 lines 17to 19page 89 lines to 6 to 17, page 96 lines 1 to 12, page 98 lines 14 to 25 page 101 lines 33 to 34 page 110 lines 19 to 25, page 112 lines 18 to 22 page 113 lines. lines 19 to 31 page 116 lines 8 to 16, page 119 lines 11 and 12, page 119 lines 17 to 22 and page 120 lines 16 to 25.”
Indeed, as it emerged during the hearing of this appeal, the above list is not exhaustive. Also at times questions from the court turned out to be more devastating to the Appellants’ cases than those from the learned counsel for the prosecution. Quite often, too, the questions by the Court bear no relevance to the questions ask by either the prosecution or the defence. After the vigorous cross-examination of P. W.1 by the learned counsel for the defence, the learned D.P.P. had no question for him in re-examination; yet, the learned Judge himself took over and introduced the question of sexual intercourse between the 1st accused and one Clara, a point on which he had to rest his disbelief of the 1st Appellant later in this judgment. It is true too that the learned Judge during the course of the trial turned an inquisitor and an investigator (see p. 17 line 1 to page 18 line 19).
In reply, the learned Senior State Counsel for the Respondent submitted that the principles I referred to above apply to civil and not to criminal proceedings; and that in criminal proceedings a Judge has got the power under section 200 of the Criminal Procedure Law of Bendel State to put any question to a witness at any stage of the proceedings.
Now, under section 200 of the Criminal Procedure Act (and its counterparts in all the Southern States of the Federation) it is provided as follows:
“The court at any stage of any trial, inquiry or other proceedings under this Act may call any person as a witness or recall and reexamine any person already examined and the court shall examine or recall and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case.”
It must be recognized that the above provision gives wider powers in the above matters to a Judge in a criminal trial than one in a civil proceedings. Idigbe, J .S.C. expressly underscored this fact in the case of Omoregbe v. Lawani (supra) at pp. 120-121. There can be no question that as a general proposition a Judge in a criminal proceeding has powers under the section to suo motu call or recall a witness and to examine or re-examine a witness called by either party. But, in my judgment, his discretion in the matter is not unfettered in view of the adversary system I have discussed and the right of the accused person to a fair trial entrenched by the Constitution of 1979. Impartiality of the adjudicating tribunal is a necessary adjunct to a fair trial. So, whereas the power of a Judge under the section to examine or cross-examine a witness can be properly invoked to get a clarification of the answers given to questions asked by one of the parties (see Lawrence Agbaje v. The Republic (1964) 1 All N.L.R. 295, at p. 297); to clarify a point that has arisen ex im-proviso, such as where an accused person introduces a new issue (see Rex v. Asuquo Edem & Ors. (1943) 9 W.A.C.A. 25; see also West v. Police (1952) 20 N.L.R. 71), also R. v. Liddle (1928) 21 Cr. App. R. 3; the rationale for the power under the section is that such a power is necessary in the interest of justice. But it would be wrong and contrary to the expected impartial role of a Judge in our adversary system and the spirit of fair hearing which means the same thing with fair trial if the Judge who is expected to play the role of an impartial umpire uses the section as a licence to descend into the arena of the conflict and act for one party or the other rather than holding the balance between the contending parties. Expatiating on this point in David Uso v. Commissioner of  Police (1972) 11 S.C. 37 at pp. 46 – 47 Elias C.J.N. said:
“Learned counsel also submitted that the trial of the accused was unfair in that the Senior Magistrate personally took over from the prosecution a disconcerting cross- examination of the accused for nearly a page and a half in an all-out effort to discredit the accused on the issue of forgery and stealing of the agbada and sokoto. We think that there is substance in this argument of learned counsel for the Appellant. In our system of criminal trial, the Judge as umpire is not expected to descend into the arena. This illustrates the difference between the accusatorial and the inquisitorial methods of trying an accused person – the difference between the Anglo-Saxon and the Civil Law systems. Our procedure is accusatorial in the sense that the innocence of the accused is presumed until he is proved guilty by the prosecution. Under the inquisitorial system of trial, which obtains in most Continental legal systems, the Judge plays a dynamic role in cross-examining litigants and witnesses and the accused’s guilt is presumed until he proves his innocence. Mr. Eduvie, Senior State Counsel for the Mid-Western State, also conceded that the Senior Magistrate’s lengthy cross-examination of the accused was improper.…………………….J…………………….

We think that the procedure adopted by the Senior Magistrate in the present case is wrong and that the appeal ought to be allowed on this ground alone.”
This was exactly what happened in this case. Worse, as I have stated, the learned Judge used the answers he elicited under his vigorous cross-examination of the witnesses to resolve the issue of credibility or otherwise of the Appellants. This was gravely in error as such questions by the Judge cannot be properly used to strengthen the case for the prosecution or to clear a doubt which might have enured to the defence. See Adeyeye v. The State (1968) N.M.L.R. 48; see also R. v. Cleghorn (1967) 51 Cr. App. R. 71. From all these it appears to me that section 200 of the Criminal Procedure Act must be read and construed in the context of our adversary system of administration of criminal justice. It does not authorize the trial Judge to take sides in the conflict by usurping the function of either the prosecution or the defence or to turn an investigator or an inquisitor. Such questions as he can ask under powers conferred by the section are those consistent with his expected role of an impartial umpire. It appears to me that the complaints of each Appellant that he has not had a fair trial is well-founded. For this alone and for other reasons more fully given by my brother, Nnamani, J.S.C., in the lead judgment, the appeal ought to succeed.
Finally I should address my mind to the issue of what order to make. The learned counsel for the Appellants has submitted that this Court should discharge and acquit all the Appellants. On the other hand, the learned Senior State Counsel for the Respondents has urged that if we find that there has been a serious error in the trial, we should remit the case for retrial before another Judge.
Now the locus classicus on the practice of this Court to order a retrial was settled by the Federal Supreme Court in the case of Abodundu & Ors. v. The Queen (1959) 4 F.S.C. 70 where it stated, per Abbott, F.J., at pages 73 – 74 thus:
“We are of opinion that, before deciding to order a retrial, this Court must be satisfied (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 on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11 (1) of the Ordinance; (b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant; (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time; (d) that the offence or offences of which the Appellant was 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 a retrial would occasion a greater miscarriage of justice than to grant it.”
The five conditions must co-exist before the Court will order a retrial; Abu Akwa v. The State (1969) 1 All N.L.R. 133, at p.137. See also Aigbe & Anor. v. The State (1976) 9 -10 S.C. 77, pp. 93 – 94. In Akwa’s case as well as in the case of Abodundu (supra) the Court merely quashed the conviction: see also R. v. Egwuatu (1940) 6 W.A.C.A. 79; Ejukolem v. Police (1952) 14 W.A.C.A. 161.
In the instant case, I have no difficulty in coming to the conclusion that as far as conditions (a), (b), (d) and (e) in Abodundu’s Case (supra) go, there can be no question as to whether a retrial should be ordered. It is with respect to condition (c) that I believe the matter deserves serious consideration. The Appellants have been in custody for over seven years; but then if in the end the case against them is proved, they shall have gained in view of the punishment prescribed for the offence. If unproved and they are discharged after a retrial, I do not think a miscarriage of justice shall have resulted in view of the nature of the case against them. The point that the recollections of witnesses shall have gone dim is an advantage which could enure to the Appellants on a retrial. In particular, I agree that having regard to the gravity of the offence and the case disclosed against the Appellants greater injustice will result by refusing a retrial than to grant it. For these reasons I should also order a retrial.
For the above reasons and the fuller reasons given by my learned brother, Nnamani, J.S.C., in his lead judgment, I also allowed the appeal, set aside the judgment of the High Court and conviction of each of the Appellants for armed robbery. But I order that each of them should be tried de novo before another Judge of the Bendel State High Court.

Appeal Allowed
Retrial Ordered

Appearances

B.A. Olaogun (with him M.E. Osoata, B.A. Dawodu and J. I. Ojiako)For Appellant

AND

M. I. Edokpayi (Senior State Counsel, Bendel State)For Resp

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