⦿ CASE SUMMARY OF:
Federal Republic of Nigeria v. T. A. Dairo & Ors (2015) – SC
by PaulPipAr
⦿ THEME(S)
Voluntary Statement;
Criminal Trial;
Notice of Appeal;
Two Notices of Appeal;
⦿ PARTIES
APPELLANT
1. Federal Republic Of Nigeria
v.
RESPONDENTS
1. T. A. DAIRO
2. BABALOLA BORISADE
3. ROLAND IYAYI
4. GEORGE EDER
5. AVSATEL COMMUNICATIONS LTD
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, JSC
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– S. T. HON, SAN.
* FOR THE RESPONDENTS
– S. A. Awomolo, SAN;
– Kehinde Ogunwumiju;
– Olumiyiwa Akinboro;
– Olusegun Jolaawo;
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⦿ FACT (as relating to the issues)
Way back in November, 2009, the respondents in this appeal, [as accused persons], were arraigned before the High Court of the Federal Capital Territory, Abuja. Precisely, by an Amended Charge of fifteen counts, dated and filed on November 19, 2009, they were alleged to have committed various offences under the Penal Code and the Independent Corrupt Practices and Other Related Offences Act, 2000 [ICPC Act, for short].
Sequel to their due arraignment, trial commenced before High Court Number 12 (hereinafter, referred to as “trial Court’). It would appear that there were no procedural hitches when the first nine witnesses were examined in chief; duly, cross examined and discharged, accordingly. However, the prosecution’s attempt to tender the extra judicial statement of the first respondent was, stoutly, resisted by counsel for all the accused persons. PW10 was one Reuben Omosigbo, the principal Investigating Officer. The prosecution sought to tender the first respondent, T. A. Dairo’s statement of July 25, 2008, through him. Counsel for all the accused persons greeted this attempt with firm disapprobation. They predicated their objection on the ground of the involuntariness of the said statement. On his part, counsel for the third accused person [now, first respondent] hinged his agitation on the fact that the said statement was elicited from a question and answer session and on its involuntary origin.
In the circumstance, the trial court was constrained to order a trial-within-trial or mini trial (otherwise, known as voire dire). At the mini trial, the prosecution’s witness [who obtained the said statement] testified and was cross examined. The first respondent herein [the third accused person before the trial court] testified and was cross examined. The trial court found in favour of the voluntariness of the said statement, partly, anchoring its reasoning on its observation of the demeanour of the first respondent and the prosecution’s sole witness at the said mini trial. Consequently, it admitted the statement as exhibit AX.
Aggrieved by the said court’s ruling, the said first respondent lodged an appeal at the Abuja Division of the Court of Appeal (henceforth, referred to as “the lower court.”) In its judgment dated April 25, 2012, the lower court allowed the appeal. It proceeded to expunge the said exhibit AX from the records.
This appeal is the prosecution’s expression of dissatisfaction against the judgment of the lower court.
⦿ ISSUE(S)
1. Whether the Court of Appeal was right when it held that it was regular and permissible for the first respondent to have argued his appeal upon two Notices of Appeal without withdrawing one?
2. Whether [the] appellants right to fair hearing was breached when the Court of Appeal failed, neglected or refused to rule one way or the other on the submissions of the appellant that the first respondent abandoned the case he presented at the trial while arguing his appeal at the Court of Appeal?
3. Whether in view of the express admission on the record by the first respondent that the disputed confessional statement was voluntary, coupled with his failure to crossexamine the only prosecution witness in the voire dire on vital issues, the Court of Appeal was right to have relied merely on alleged circumstances’ and state of mind of the first respondent and the failure of the prosecution to call evidence which the Court of Appeal held was vital, to hold that the confessional statement was not voluntary?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
RATIO:
i. The rationale of all decisions of this court on this is that it is permissible to file two Notices of Appeal within time. The cases are many indeed. The prescriptions that crystallise from such cases may be summed up thus: the Rules of the lower court do not prohibit the filing of two or more notices of appeal, Abba Tukur v Government of Gongola State [1988] All NLR 42, 49; Ogboru v Uduaghan [2012] 11 NWLR (Pt 1211) 357. Although it may “look a bit awkward,” Akeredolu and Ors. v. Akinremi and Ors. [1986) 2 NWLR (Pt25) 710, or “somewhat too technical,” Hariman v Hariman (1987) 3 NWLR (Pt 60) 244], see, per Oputa JSC in Tukur v Government of Gongola State(supra), an appellant who, like the first respondent, files two such notices is not blameworthy for erring on the side of caution. The reason is simple: the ancient maxim abundantia cautela non nocet [meaning “great caution does no harm”], first, endorsed in Heydon’s Case 11 Co. Rep. 5a at 6b, has been endorsed by this court, Tukur v Government of Gongola State (supra).
ii. The Constitution of the Federal Republic of Nigeria (as amended) creates categories of rights of appeal from the trial court to the lower court. While section 241 consecrates appeals as of right from the Federal High Court or a High Court, section 242 ordains rights of appeal with the leave of the Federal High Court; High Court or the Court of Appeal. In effect, the exercise of each category of a right of appeal would warrant the filing of a Notice of Appeal. Thus, an appellant, desirous of exercising both rights, could file two Notices of Appeal within time.
iii. The lower court, having granted the first respondent the indulgence to consolidate the said two Notices of Appeal, the contention that the said first respondent relied on “two Notices of Appeal in the same appeal without withdrawing one,” [paragraph 4.18, page 9 of the appellant’s brief] would seem to miss the import of the libertarian interpretation of Obaseki JSC in Tukur v Government of Gongola State(supra).
iv. We, entirely, agree with counsel for the respondents [paragraph 4.06 et seq of the first respondent’s brief, for example,] that since the first Notice of Appeal was filed on grounds of law alone while the second Notice of Appeal was on grounds of mixed law and fact, after leave of the trial court had been sought and obtained, there could not have been a multiplicity of actions in the circumstance. This contention is unanswerable.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE RESPONDENT.
RATIO:
i. If the objection was based, inter alia, on the ground that the prosecution contravened the provision of section 28 of the Evidence Act [then in force] in the process of obtaining the said statement, would it then be correct to contend, as the appellant’s counsel did before us, that the sole ground canvassed in opposing the admissibility of the said statement was the fact that it was a product of question and answer? We do not think so. We do not find any merit in the appellant’s contention that the lower court failed, neglected or refused to make a pronouncement on the submission that the first respondent abandoned the case he presented at the trial court while arguing his appeal at the appeal court. From the above excerpts, we entertain no doubts that the lower court, actually, dealt with the said complaint of the appellant. Against this background, we agree with counsel for the respondents that the lower court pronounced on all the issues raised. We find no merit in the complaints in this issue.
3. ISSUE 3 WAS RESOLVED AGAINST THE RESPONDENT, AND HELD THAT THE FIRST RESPONDENT MADE THE CONFESSIONAL STATEMENT VOLUNTARILY.
RATIO:
i. On our part, we find considerable merit in the proposition by the appellant’s counsel that “if a witness is asked you voluntarily signed the statement’ and he answered I signed it,’ that clearly is an unequivocal admission that the signing was voluntary.” In this particular instance, the context of the above responses cannot be wished away. As indicated earlier, the very essence of the mini trial was to determine the voluntariness of the said statement.
⦿ REFERENCED
S. 241 & 242 of the CFRN 1999;
Order 7 Rule 1 and Order 17 Rules 1 and 12 of the Court of Appeal Rules;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
As Oputa JSC, put it in Tukur v. Government of Gongola State (supra): “To utilise and exercise any right of appeal, an appellant is obliged and obligated by the Rules to file a Notice of Appeal. Where therefore the Constitution gave one and the same Appellant in one and same case two rights of appeal one as of right, without leave, and the other qualified by and limited to the grant of leave there and then it is logical to conclude that for each right of appeal being exercised one Notice of Appeal is required so that for the exercise of the two constitutional rights two Notices of Appeal will technically be required”
Abubakar v Yar’adua (2008) 4 NWLR (Pt. 1078) SC 465) at 511 paras E G held per Niki Tobi JSC as follows: “Rules of court are meant to be obeyed of course. That is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or should not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer as for as the public is concerned is whether at the end of the litigation process, justice has been done to the parties. There, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule such as paragraph 7 of the practice Directions, the court should be happy that it took that line of action in pursuance of justice”.
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⦿ NOTABLE DICTA
* PROCEDURAL
In effect, the absence of a competent Notice of Appeal, simply, translates to the nonexistence of an appeal. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Thus, where such an appellant, timeously, withdraws one of the two notices which are of the same nature, his process would not be an abuse of process, Diamond Bank Ltd v P. I. C. Ltd [2010] All FWLR (Pt 512) 1098, 1126, C-F. In effect, an appellant can, validly, withdraw one of two notices of appeal and then proceed to argue his appeal on the outstanding notice of appeal, Savannah Bank of Nigeria Plc v CBN [2009] All FWLR (Pt 481) 939, 969. As a corollary, the notice of appeal, which was withdrawn, would be deemed abandoned, Diamond Bank Ltd v P. I. C. Ltd (supra) at 1126 C-F. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Rules of court, particularly, provisions apropos Brief writing, were prompted by the philosophical quest for speedy trial and expeditious disposal of matters. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Even then, the concept of abuse of process applies only to proceedings which are bereft of good faith; which are not only frivolous, but also vexatious or oppressive; which, almost always, have an element of malice in them, having been commenced mala fide, to irritate or annoy the opponent. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
It is a known fact that blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case. In our view, therefore, the lower court was in the good company of this court when it, stoutly, refused to make the first respondent in this appeal [appellant at the lower court] “to incur the wrath of the law at the expense of hearing the merits of the case”. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
* SUBSTANTIVE
Simply put, the wheels of justice must be at liberty, just like the chariot of juggernaut, to coast on their course, unbridled by such disingenuous manoeuvres, deliberately, programmed to clog their majestic movement. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Indeed, the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion: they are countless. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
The error of the lower court stemmed from the fact that it did not advert to a point which is well-established in a long line of cases that a finding of fact based on demeanour is one of those exclusive prerogatives of a trial court which appellate courts do not make the habit of interfering with. The reason for this is simple: the trial Court saw the witnesses, heard them, and watched their demeanour in the witness-box. It was, thus, in a very peculiar vantage position to believe or disbelieve them. That advantage can never be recaptured by an appellate Court which, accordingly, is thus bound to accept the judgment of the trial Court on matters of credibility, – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Courts should, on no account, spend precious judicial time on issues that are academic. They should determine live issues and those are issues that would meet the ends of Justice. – Chima Centus Nweze, JSC. FRN v. DAIRO (2015)
Some salient points need to be noted, and these are that since a notice of appeal is the foundation of an appeal, any defect in it goes to jurisdiction and cannot be excused because it is a criminal appeal. – Peter-Odili, JSC. FRN v. DAIRO (2015)
