➥ CASE SUMMARY OF:
Chidiebere Onwudiwe v. Federal Republic of Nigeria (2018) (CA)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Classify witnesses;
Fair hearing.
➥ CASE FACT/HISTORY
The appeal is against the ruling of B. F. M. Nyako J., of the Federal High Court Abuja, in suit No. FHC/ABJ/CR/382/2015 delivered on the 13th of December, 2016. Consequent upon the Respondent/Applicants motion filed on the 11/11/2016 before the lower court praying for – ‘An Order of this Honorable Court granting leave to the prosecution witnesses to be protected by giving evidence behind screen to be provided by the Court.’
and after taking arguments from both counsel, ruled that: ‘Consequently in consideration of all of the above, I hereby order that the names of the prosecution witnesses who are security operative, be classified and should appear in combinations of alphabets and such witnesses will give their evidence behind screen to be provided by the Court.
The Court, prosecution, defendants and their Counsel will be able to see the witnesses who should have special assess into and from the Court with a special waiting area. Case adjourns to 10-12/1/17 for trial.”’
Irked by the lower Courts decision, granting the respondents application, appellant filed in a Notice of Appeal on the 22/12/2016 predicated on four grounds.
➥ ISSUE(S)
I. Whether the trial Court was right in granting the application made by the prosecution for witness protection?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE ORDER DOES NOT INHIBIT FAIR HEARING BUT IS PROTECTIVE
‘To contend that the provisions of the Act, were unconstitutional. I have religiously studied the two cases cited against the trite position of the law. The two decisions are of persuasive nature and therefore relevant. In the latter case, Justice Rodger brought to the fore the history of shielding witnesses where he stated:
The intimidation of witnesses is an age old and world- wide problem.
When cicero was intent on prosecuting verres for his reign of terror in sicily, highly placed henchmen of verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him.”
Although the Court recognised the right of the Court to inherently possess the jurisdiction of controlling its proceedings, concluded that where the protective measures imposed by the Court hampers the conduct of the defence in a manner and to an extent which was unlawful and rendering the trial unfair, an appeal on such a trial would be allowed. The Court however admitted of departures to the general rule in favour of open justice and confrontation of a defendant by his accuser, to include where necessity is made out, and where the witnesses reluctance to give evidence in the ordinary manner is genuine and the extent of his fear justifies a degree of anonymity.
Coming to the instant case, and by Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reproduced above, the sacrosanct and immutable stipulation as to fair hearing are spelt therein. To be considered is whether the Act, by its very wording or intent conflicted with the Constitution, and particularly whether the ruling of the lower Court breached appellants right to fair hearing. The learned counsel to the respondent submitted that the lower Court by its ruling to wit;
The prosecution witnesses shall however not be shielded to the defendant and all legal representatives in this case, including the Court.
Meant that the lower Court considered the issues raised before it to the conclusion that his ruling premised on the provisions of the ACJA do not conflict with Section 36 (4) of the Constitution. He further argued that the appellant having not complained about sufficient time and opportunity to prepare for his defence, or that his legal representatives and the Court will not be able to see or to hear the witnesses give evidence and to cross examine them, but that the public are restrained or shielded from the public, Section 36 (4) of the Constitution cannot be said to have been breached. I agree with the learned senior counsel for the respondent. Indeed as posited by the lower Court and the respondent, what is contemplated here is not a secret trial as the appellant would want the Court to believe, but one recognised by the very same provisions of Section 36 (4) of the Constitution. It is my humble but firm view that the provisions of the ACJA, 2015 and in particular Section 232 is meant to further amplify the provision of Section 36 (4) (b) with respect to certain enumerated crimes therein, and does not in any way seek to annoy nor prevent the protective stipulations covered by Subsections (5) and (6) of the Constitution, and do not conflict at all.’
‘I agree that the decision of Williams JCA in the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (supra) is apt in the instant case. Whereas the English case of R vs. Davis (supra) and The South African case of Ackerman vs. Leepile (supra) cited and relied on by the appellant relates to secret trials, which delimited the identification and cross examination of witnesses, the lower Court frowned at such a trial, thus only granting the prosecution, the right to shield the witnesses from the public for reasons agreeable to him. Not only are the cases distinguishable from the instant case, and therefore unavailable to the appellant, it lays down exceptions which were unfavourable to the appellant.’]
.
.
.
✓ DECISION:
‘I see no reason to disturb the well-considered reasoning and conclusion of the lower Court, and the inevitable conclusion is that this appeal is devoid of merit, deserving of a dismissal. Hence having determined the sole issue against the appellant, this appeal is dismissed for want of merit. The ruling of the lower Court delivered on the 13th of December, 2016 in suit No. FHC/ABJ/CR/383/2015, between Chidiebere Onwudiwe and the Federal Republic of Nigeria, to the effect that the names of the prosecution witnesses who are security operatives, be classified and appear in combinations of alphabets, and that such witnesses give their evidence behind the screen to be provided by the Court is hereby affirmed. APPEAL DISMISSED.’
➥ FURTHER DICTA:
⦿ THE FOUNTAIN OF CRIMINAL TRIALS IN NIGERIA – SECTION 36 (5)
The fountain of criminal justice proceedings in Nigeria is rooted in Section 36 (5) of the 1999 Constitution which the Appellant is at liberty to invoke, but must first allow the trial to be commenced and concluded. — H. A. Barka JCA.
⦿ APPLICANT NEED NOT NAME THE WITNESSES TO BE SCREENED
Applicant does not need to name the witnesses who are to be screened, and to say that the alleged offences must be proved in order for the Court to know that the act of terrorism is to be proved, in order to grant the application, is to defeat the import of the application. — H. A. Barka JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Hamma Akawu Barka, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. I. Adoga
⦿ FOR THE RESPONDENT(S)
S. M. Labaran (PSC) MOJ
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 36(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
Section 232 of the ACJA 2015;
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
