The Supreme Court of Nigeria has raised an alarm over the frequency of appeals based on improper arraignments.

 

Hassan v. Federal Republic of Nigeria [2017] 6 NWLR (Pt. 1560) 64 at 84, paras. A-B, per Nweze, JSC:

“The frequency of appeals to this court, in recent times, on the improper arraignment of defendants before trial courts should be of concern to the relevant authorities. This is, somewhat, surprising since the jurisprudence on arraignment is, truly, robust. Against the background of what transpired at the trial court, as regrettably, affirmed by the lower court, I am constrained to reel off some of these decisions for the umpteenth time in the hope that this embarrassing development should abate…”

unfettered

Blogger’s Note:

What happened in the above case was that sometime in 2010, the Appellant was charged and tried along with 14 others for illegal possession of locally made guns and commission of several acts of terrorism. The record of the trial court showed that the pleas of all the accused persons on the counts in the charge were jointly taken and lumped together. The Appellant was convicted and sentenced on one of the counts by Allagoa, J. His appeal against his conviction and sentence based on ground of improper arraignment was dismissed by the Court of Appeal. On a further appeal to the Supreme Court, the apex Court allowed the appeal and ordered a fresh trial before another Judge. The Court took time in restating the principles of valid arraignment as contained in Section 215 of the Criminal Procedure Act (CPA) and in Section 36(6)(a) of the 1999 Constitution (as amended).  Section 215 of the CPA clearly requires that (a) the accused person shall be placed before the court unfettered; (b) the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the court by the registrar or any other officer of the court; (c) the accused person shall be called upon to plead to each charge; and (d) the plea of the accused person shall be instantly recorded. Section 36(6)(a) of the Constitution provides that the accused shall be informed promptly in the language he understands and in details the nature of the offence. There is a host of judicial authorities on the above and the apex Court, per Nweze JSC, supplied a good number of them at page 84 of the report and expressed its displeasure with the conduct of the trial court and the position of the Court of Appeal.

One important point to note is that the Supreme Court, in restating the principles for valid arraignment, further held that “the trial court should record that the charge was read and explained to the accused person to the satisfaction of the court, before recording his plea…” See page 80, paras. E-F, per Rhodes-Vivour, JSC. This appears to run contrary to what the Supreme Court noted in the case of Okoro v. The State [1998] 14 NWLR (Pt. 584) 181 at 214, paras. E-G where Wali, JSC reasoned: “The provision (of Section 215 of the Criminal Procedure Law dealing with procedure for arraignment) is to intimate the accused with the contents of the charge he is to stand trial for… This provision of the Law should not be stretched to a point of absurdity by reading into it that the judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the judge to do that as no judge will take a plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction…” This was recently cited by the Court of Appeal in Olatayo v. State (2016) LPELR-40159(CA). In Okoro’s case, the Supreme Court found from the trial court’s record that the charge was read, interpreted and explained to the accused person in Yoruba and he also pleaded to the charge. The arraignment was held to be valid.

While we appreciate the good reasoning of Wali, JSC, we submit that it is good practice for the trial Judge to make full and proper record of the arraignment process as stated by the Supreme Court in Hassan’s case. See Umuolo v. State [2003] 3 NWLR (Pt. 808) 493. However, failure to specifically record that the “charge was read and fully explained to the accused to the satisfaction of the court” will not render the trial a nullity. See Olatayo v. State supra.

 The trial courts should take seriously the issue of arraignment to avoid needless issue of fresh trial after a matter must have been determined on the merits. This would save precious judicial time and resources. To ensure perfect compliance means well for the administration of criminal justice.

The constitutional right to life of a deceased person can be enforced by his dependants.

Omonyahuy & Ors. v. Inspector General of Police & Ors. (2015) LPELR-25581(CA), per Augie, JCA (as she then was):

“…In resolving this issue, which boils down to a question of whether the constitutional right to life of a dead man can be enforced by his dependents, we are faced with an uphill task and will be swimming in uncharted waters, since there are no authorities either from the Supreme Court or this Court on the subject, and so, to guide us on this journey through virgin territory, we must establish where we were, where we are, and where we need to go… It appears that we have charted a way to the answer to our question – the constitutional right to life of a dead man can be enforced by his dependents…”

Blogger’s Note:

The facts of the case are that on 15/2/2012, the 4th Respondent police officer (in company of other policemen, i.e., 5th and 6th Respondents) mounted illegal roadblock/checkpoint (as is the custom of the Nigeria Police, notwithstanding all efforts to put an end to the bad practice) whereupon they stopped two men riding to work on a motorbike. The case of the Appellants was that the 4th Respondent shot the men due to their brave refusal to give them (4th-6th Respondents) money demanded at the illegal checkpoint. Being aggrieved and heart-broken by the unfortunate incident, the Appellants filed an action at the Lagos High Court against the Respondents under the Fundamental Rights (Enforcement Procedure) Rules 2009 (2009 FREP Rules) seeking the enforcement of the fundamental right to life of the deceased persons. The 1st-3rd Appellants are dependants of the two deceased men, while the 4th Appellant was the supervisor of the two deceased men at work. It was also the case of the Appellants that the 4th Appellant was illegally detained in connection with the death of the deceased persons and so sought an enforcement of his fundamental rights. Without going into the merits of the case, the trial Judge dismissed the action on the ground that the case did not qualify as a fundamental rights action and that same was founded under the criminal offence of murder. Dissatisfied, the Appellants appealed to the Court of Appeal. The issues to be determined were whether the matter was properly commenced under the 2009 FREP Rules and whether the fundamental right to life of the deceased persons can be enforced by their dependants.

The Court of Appeal took time to consider the issues given that, as stated by the appellate Court, there are no direct Supreme Court or Court of Appeal authorities on the points. Augie, JCA (as she then was), in delivering the Judgment of the Court of Appeal, reasoned and concluded that the action was properly commenced as a fundamental rights suit and that the constitutional right to life of the deceased men could be enforced by their dependants. In arriving at its sound decision, the Court of Appeal put into consideration the improvements brought by the 2009 FREP Rules which did away with the requirement for leave to apply for the enforcement of fundamental rights, the doctrine of locus standi and limitation of time, unlike what we had in the 1979 FREP Rules. The Court was also well guided by the preamble to the 2009 FREP Rules which significantly spelt out the overriding objectives of the Rules (such as public interest litigation); and some decisions (both local and foreign) amplifying on the said objectives. More so, the Court of Appeal applied the Mischief Rule of statutory interpretation which prescribes that the role of the courts in interpretation of statutes is to supress the mischief a statute is aimed at and advance the remedy. By this, the Court was mindful of the mischief the 2009 FREP Rules aims to cure as seen in the 1979 Rules.

The appeal was therefore allowed and the matter was thereafter remitted back to the lower Court to be determined on the merits by another Judge.

The Court of Appeal is highly commended as its decision in the case was in tune with modern day pronouncements and advancements in international human rights law.

Read the full Judgment.

The mere fact that a contract is in foreign currency does not make a dispute arising a foreign exchange matter.

 

U.B.A. Plc v. BTL Ind. Ltd. [2006] 19 NWLR (Pt. 1013) 61 at 104, paras. B-C, per Onu, JSC:

“As the claim has nothing to do with monetary or fiscal policy of the Federal Government of Nigeria in the pleadings and evidence before the court, the mere fact that the unit of account is foreign currency for which the respondent paid the Naira equivalent does not make it a foreign exchange matter.”

pound sterling

Blogger’s Note:

The facts of the above case would enable us digest the above quoted statement of law by the Supreme Court.  The Respondent, a Nigerian company, was involved in the business of importation and distribution of building materials, industrial chemicals, and raw materials. The Respondent imports items on credit from its overseas suppliers and the items were usually sent with bills of exchange, or bills for collection or by letter of credit denoted in various foreign currencies. The Respondent maintained a current account with the Appellant. The role of the Appellant in relation to the Respondent’s transactions with its overseas suppliers was that, based on agreement and for the settlement of these bills, the Appellant appropriated the relevant sums by debiting the current account of the Respondent (with the Naira equivalent) and was expected to apply to the Central Bank of Nigeria (CBN) for approval and foreign exchange allocation for onward remittance of the foreign currencies to the Respondent’s overseas suppliers, being payment for the goods supplied. It however turned out that the Respondent cleared the goods supplied but the Appellant was unable to effect payment on behalf of the Respondent to its foreign suppliers/creditors. The reason was that although the Appellant duly transferred the money (Naira equivalent) it drew from the Respondent’s account to CBN to procure foreign exchange, the application was unsuccessful. Consequently, CBN returned the money to the Appellant.  However, the Appellant failed to disclose this fact and also failed to return the money to the Respondent but kept making empty and deceitful assurances to the Respondent that the money would be transmitted. The Respondent, upon discovering through a circular that CBN had returned the money to the Appellant, sued the Appellant principally for the refund of the money it paid to the Appellant for remittance to its overseas suppliers. The trial Court (Lagos High Court) delivered judgment in favour of the Respondent and same was affirmed by the Court of Appeal.

Dollar bills

The Appellant appealed to the Supreme Court. Continue reading The mere fact that a contract is in foreign currency does not make a dispute arising a foreign exchange matter.

The courts must consider the current value of the Naira in awarding damages.

 

Onagoruwa v. IGP [1991] 5 NWLR (Pt. 193) 593 at 650-651, per Tobi, JCA (as he then was, and now of blessed memory):

“In these days of racing inflation where the buying and purchasing power of the Naira falls drastically (and painfully so) every day and therefore not commensurate to the quality and quantity of goods bought, a Judge should in the assessment of damages consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorise with principles of law and facts and figures presented to him in court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly,  he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira.”

Blogger’s Note:

This is a good observation and represents good and forward thinking. The Court is commended.

Relying on the above pronouncement, the Court of Appeal, per Salami, JCA, in Usman v. Abubakar [2001] 12 NWLR (Pt. 728) at 710, paras. D-E, remarked: “The economic reality of today is that the Naira is a ghost or shadow of its old self. The value of the Naira in 1993 when the property was destroyed was about N5.00 to a Dollar. Today the Naira has so badly shrunk or slumped to one Dollar changing for about N110.00. Its purchasing power should constitute relevant factor in the appropriate cases especially so when evidence is led as to the deplorable decline in the exchange rate or purchasing power of the Naira.” The Court also relied on the Supreme Court case of Allied Bank v. Akubueze [1997] 6 NWLR (Pt. 509) 374.

Sadly, the Naira has known nothing but consistent drop in value. Tobi, JCA (of blessed memory) in Onagoruwa’s case described the condition of the Naira as far back as the early 90s thus: “The Naira is no longer a stable and enduring currency.  It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin.”

Our courts should of necessity always be mindful of the value of the Naira in awarding damages. This however does not imply that a successful party in a suit should be awarded a windfall. See Emirate Airline v. Ngonadi (No. 2) [2014] 9 NWLR (Pt. 1413) 506 also cited in our previous post.

The courts have jurisdiction to determine pre-election matter even after the conduct of the election.

Dahiru & Anor. v. A. P. C. & Ors [2017] 4 NWLR (Pt. 1555) 218 at 244, paras. H-A, per Rhodes-Vivour, JSC:

“A suit does not become academic simply because what gave rise to the action is concluded. A pre-election matter that was instituted prior to the conduct of an election subsists and the court in which it is/was instituted continues to have jurisdiction to hear and determine the said pre-election matter even after the conduct of the election.”

Blogger’s Note:

The facts of the above case are that the Appellants and the 3rd Respondent (Rt. Hon. Aminu Waziri Tambuwal), all members of the APC (1st Respondent), participated in the 1st Respondent’s primaries from which the 3rd Respondent emerged as the 1st Respondent’s candidate for the 11/4/2015 gubernatorial election for Sokoto State. The Appellants were not satisfied with the conduct of the said primaries held on 4/12/2014 which produced the 3rd Respondent. This was on the ground that the primaries was not conducted in compliance with section 87 of the Electoral Act (as amended) and the 1st Respondent’s Guidelines. Consequently, the Appellants filed an action prior to the election vide Originating Summons at the Federal High Court, Abuja.

The Respondents, upon being served with the Originating Summons, filed a preliminary objection challenging the jurisdiction of the trial Court to determine the matter on the ground that since the 2nd Respondent (INEC) had conducted the gubernatorial election and returned the 3rd Respondent as the winner of the said election, the Appellants’ case became academic, hypothetical and worthless. The trial Court disagreed and overruled the preliminary objection. The Respondents’ appeal to the Court of Appeal was allowed. On getting to the Supreme Court, the apex Court allowed the appeal of the Appellants. Rhodes-Vivour, JSC stated the above stated principle. At page 245, paras. B-D of the report, the learned Justice of the Supreme Court summarised the facts and continued: “It is clear that Appellants’ action filed on 27/1/15, a pre-election matter was filed three months before the gubernatorial election were held. The suit is not academic, rather the reliefs sought are not only capable of enforcement but can be enforced….” This decision is commendable.

It is quite interesting to note that one of the Justices of the Court of Appeal (Aboki, JCA) who had upheld the preliminary objection of the Respondents while overruling the trial Court, had in an another earlier similar case (Adeogun v. Fashogbon [2008] 17 NWLR (Pt. 1115) 149) held a contrary view which aligned with the position of the Supreme Court above in the instant case. Unfortunately, Aboki, JCA failed to be consistent in his reasoning and also failed to apply the principle of judicial precedent. The Supreme Court censured him heavily. M. D. Muhammad, JSC was unequivocal: “Aboki, JCA wrote the lead judgment in Adeogun v. Fashogbon & Ors (supra), which this court affirmed. In the instant matter, it is intriguing, to say the least, to see the same Aboki, JCA, now a presiding Judge in the panel which decision is appealed against, contrary to his earlier decision as affirmed by this court, to be in a manifest somersault. With such a visibly unpardonable refusal to be bound by the decision of this court on a similar legislation, the negative perception the public has of the judicial process cannot be said to be without basis. The public is entitled, in the face of this brazen disobedience to the authority of the apex court, to conclude that the judiciary is compromised. Parties who subsequently agitate same or similar issues before the courts must fetch same or similar verdicts as did parties who earlier agitated the very same or similar issues. Certainty in decisions of courts remains what the laudable doctrine of precedent or stare decisis is all about. Ignoring the application of the doctrine is inimical to the judiciary’s role as an arbiter… We must sit up!!!” See page 240, paras. D-G of the report.

I hope our Judges would be mindful of the above statement of his Lordship and always stand up to their conviction. In A.T.M. Plc v. B.V.T. Ltd. [2007] 1 NWLR (Pt. 1015) 259 at 284-285, paras. H-A, Alagoa, JCA remarked: “A Judge must stand up to his conviction and be resolute. Having taken a stand, he must abide by it and should not be seen to make statements which are a derogation from his earlier position, or which tend to create more confusion than they solve.”

Notable pronouncement on the administration of justice – Pats-Acholonu, JSC

Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251 at 272, paras D-E, per Pats-Acholonu, JSC (of blessed memory):

“In the administration of justice it is important to note that justice, though intangible, was worshipped by the Romans as  goddess. The symbol of woman holding the scale of balance represents justice and in order to get through justice, it is only fair and in accordance with the end of justice, that its administration should not be seen as in a cloak which the light cannot penetrate.”

Blogger’s Note:

Read our earlier report of what transpired in the above case here.

The image of the woman, i.e., Lady Justice (Justitia) is one of the commonest symbols of justice personified. While the scale symbolises the balancing of the case of either sides, the blindfold signifies impartiality. The courts are often mindful of what is known as the imaginary scale of justice in deciding cases. The sword is a symbol of authority/power to meet the ends of justice. It is often double-edged, which represents objectivity. You may read the article, Views From The Cathedral:  Blindfolds, Color-Blindness And Other  Problems With Justice’s Visual Acuity.

The authenticity of the record of appeal can be challenged.

 

Odu v. Jarigbe [2017] 4 NWLR (Pt. 1556) 445 at 462, paras. D-F, per Otisi, JCA:

“A record of appeal, whether settled by the parties or by the registrar where they fail to attend to compile the records, is presumed to be correct and is binding on the court and on the parties.  This is however a rebuttable presumption. The appellate court has a duty to ensure the records are complete as settled by the parties. Where a respondent however disputes the genuineness or authenticity of the record of appeal or of portions thereof, he is duty bound to depose to an affidavit to challenge the said record; which will be served on the judge or registrar of the lower court and on the other party. If shown that the record of appeal is indeed incomplete, distorted or mutilated, the appellate court cannot entertain the appeal.”

Blogger’s Note:

In stating the above position, the learned Justice of the Court of Appeal relied on a number of authorities which include Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251; Orajeka v. Owuamalam (2011) LPELR-4883 (CA). See also Akpan v. FBN Plc (2016) LPELR-41201(CA).

In practice, completeness of a record of appeal does not mean that the entire court processes filed in the suit must be transmitted to the appellate court. Parties are at liberty to leave behind any process that they do not consider necessary for the determination of the appeal. Where necessary however, additional record may be compiled, in good time (as usually specified by the relevant rules), by any party upon being served with the record. (See Order 8 Rule 6 of the Court of Appeal Rules 2016). This is entirely within a party’s discretion, as held by Otisi, JCA. In the instant case, the 1st Respondent challenged the record of appeal by way of preliminary objection arguing that the record was incomplete. The Court of Appeal dismissed the objection on the ground that the 1st Respondent had the liberty to file additional record within 15 days (in accordance with the Court of Appeal Rules) of being served with the record but failed to do so.

It is important that a party disputing the authenticity of the record of appeal should depose to an affidavit because it is a serious allegation. The record of court are quite important and needs to be intact at all times. Unlawfully tampering with court records has great effect on the case before the court. The facts of Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251 are quite interesting. The Appellant filed an action against the Respondent at the Upper Area Court, Ilorin, claiming a parcel of land. The trial court found for him. The Respondent appealed to the High Court on the ground that the decision of the trial court was a nullity having being delivered in chambers. Affidavits and counter-affidavits were filed in this regard. The High Court ruled that there was nothing from the record of proceedings of the trial court showing that the Judgment was delivered in chambers, thereby dismissing the appeal. The Respondent appealed to the Court of Appeal which allowed the Appeal. The Appellant’s appeal to the Supreme Court was dismissed. The apex Court in upholding the decision of the Court of Appeal reasoned that ordinarily, it is not normal for a court to indicate in its record of proceedings whether its proceedings were taken in public or in camera. Therefore, the Court of Appeal was right in not restricting itself to the Judgment of the trial court as done by the High Court. It was also held that the Court of Appeal was right in considering the affidavits filed. (See Edozie, JSC at page 279). Pats-Acholonu, JSC (of blessed memory) went ahead to state the principle thus: “A party affected by the proceedings of a court who was present in court and was able to observe the nature of the proceedings in the court shall not or ought not be precluded from asserting, by way of affidavit, that what is contained in the record does not exactly represent the true state of affairs of what happened on that date or other dates of the proceedings. The Court of Appeal is bound to look at the depositions to ascertain the veracity or otherwise of the complaint. Where such facts so deposed go to the root of the proceedings and the surrounding circumstances tend to support same as to render it nugatory and void, it is, I believe and I so strongly hold, that it is the duty of the court seised with the proceedings to use the new facts to determine the legality or irregularity complained of.”  See page 271-272, paras. F-B of the report.

In the case of Military Governor of Lagos State v. Adeyiga [2012] 5 NWLR (Pt. 1293) 291, a Judge deposed to an affidavit which he swore to on 4/11/99  (after he had retired on 1/1/94) with respect to the proceedings of a certain date (23/12/93) which the Appellant said never took place because record of it was not found. The Judge stated in his affidavit that the said proceedings indeed took place and that he sat on that date. The Supreme Court believed him after due consideration of the facts deposed to in the affidavit. Peter-Odili, JSC held that “the disappearance from the record of proceedings of the court notes for 23/12/93 was the result of mischief-making or negligence on somebody’s part.” See page 348 of the report.