Your Exercise Of Discretion Is Tainted With Illegality, Court Of Appeal Tells Hon. Justice Abang

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The Court of appeal Lagos on 29th June 2020 nullified the judgment of Abang J. convicting and sentencing Nnamdi Okoye and Ikechukwu Ezeogwum to prison terms saying that the entire proceeding was a nullity.

The Appellants Messrs Nnamdi Okoye and Ikechukwu Ezeogwum were initially arraigned in Charge Number FHC/L/225C/2009 before Sani J of the Federal High Court Lagos.  Plea of the defendants were taken on proposed amended charge attached as an exhibit NPF1 in the motion for amendment. Sani, J. was later transferred to Sokoto and the case file was then reassigned to Abang, J. who commenced trial afresh on 18th May 2010 but without any valid charge before the honourable court. Hon Justice Abang did not also take the plea of the accused persons at all and proceedings continued to judgment.

On 13th December 2018 when Judgment of the court was to be delivered, Honourable Justice Abang was caught up with fundamental multiple errors in the proceedings of the court as raised by counsel to the defendants, D. O. Obiorah of Odinaka Obiorah and Associates in their final written address to the court. Abang, J. then stood down the judgment and then took the plea of the accused persons. The Honourable Court against objection of the defendant’s counsel delivered courts’ judgment, found the defendants guilty, convicted them and sentenced them about 14 times jail term above the term prescribed by law. Dissatisfied, each defendant filed a notice of appeal to Court of Appeal Lagos Division ASPER Appeal Number CA/LAG/192/2019 and CA/LAG/192/2019 respectively.

Appellants in their said respective appeals to Court of Appeal Lagos against the judgment of Abang, J. through their lawyer D. O. Obiorah of Odinaka Obiorah and Associates contended that the proceedings of Abang, J. from the 18th May 2010 to 13th day of December 2018 was a nullity having failed to comply to or meet with the mandatory requirement of Section 215 of Criminal Procedure Act. They contended also that there was no valid trial in the lower court upon which the appellants were found guilty, sentenced and imprisoned. The Appellants urged the Appellate Court to allow their appeal, set aside the Judgment, conviction sentencing and all orders contained in the judgment of Abang, J. It was the defendants’ further plea to the Appellate Court to make an order discharging the respective Appellant and or acquitting each of them if the appeal is determined in the alternative argument proffered.

The Appeals were heard by three justices of Court of Appeal Lagos Division Coaram: Ikyegh, Ogakwu and Tobi on the 27th May 2020.  In their unanimous judgment delivered on the 29th day of June 2020, the learned Justices of Court of Appeal Lagos Division declared the proceeding before Abang a nullity; set aside the judgment of the lower court embodying the conviction and sentence of each Appellant; declined to order a fresh trial and made further order that the Appellants be released from the correctional facility where they were being held forthwith for reasons that there was no formal charge before the lower court for the joint trial of the two defendants and no plea was taken.

The Appellate Court in its judgment found that the matter was reassigned to Abang, J. on 18th May 2010. That when the matter first came up before Abang J, the prosecuting counsel informed the lower court that the matter was a reassigned matter and that it was for trial. The Appellate Court interpolated at this stage to state that it is the duty of the trial judge to ensure compliance with the stipulations of Section 215 of the Criminal Procedure Act. It held that the trial judge is dominis litis and ought to be in charge of the proceedings before him. The Appellate Court find needless, the strictures which the lower court heaped on the Appellant’s counsel in the judgment, for having misled and tricked the court to proceed to hearing when plea had not been taken. Court of appeal held that the court is the master the master of its records. They held that upon the prosecuting counsel applying for a date for trial, the court as master of its records ought to have ascertained if indeed the necessary preliminaries to commencement of hearing had been satisfied.

On Honourable Justice Aabang’s explanation in the proceedings of 13th December 2018 where it stated that it was through inadvertence that it adjourned the matter for hearing when it first came up before it. Appellate Court contrasted this assertion with seeming volte face the lower court in the judgment delivered on the same day, denounced and berated the Appellant’s counsel for having misled it as a result of which plea was not taken before hearing commenced in the matter. The appellate court stated that one would have expected the lower court to eat the humble pie as opposed to blaming counsel for its failure to be the master of its records.

On issue of compliance to section 215 of the Criminal Procedure Act, the Appellate court found the lower court on the date of judgment took plea of the defendants for the first time and ordered that all that had been done in the case was properly done. They held that the order seems to be a retrospective order of compliance with Section 215 of the Criminal Procedure Act. It is their opinion that there cannot be such an order of retrospective compliance.  That the proceedings before the lower court are caught by the execrable consequences of non-compliance with Section 215 of the Criminal Procedure Act and the attendant infringement of the right of fair hearing under Section 36(6) of the 1999 Constitution. It was a nullity. It is as though there was never a trial and judgment. The conviction of the Appellant must be set aside.

On sentencing the accused persons, the Appellate court restated that the punishment for the substantive offence is six months imprisonment as set out in the proposed amended Charge or at most two years imprisonment. It was a wrong exercise of discretion, tainted with illegality for the lower court to have imposed a sentence for conspiracy which is greater than the punishment for the substantive offence and which it actually imposed for the substantive offence. They maintained that in the circumstances, the term of imprisonment imposed upon the Appellant upon his conviction for conspiracy is excessive and this court must interfere with the said wrong exercise of discretion by the lower court since it is tainted with illegality. Being a nullity, it is as though there has not been a trial and that the Appellant has not been convicted. They held that the appeal is meritorious and should be allowed. In their own words; “the trial of the Appellant having been declared a nullity, the judgment of the lower court embodying the conviction and sentence of the Appellant is hereby set aside. For the reasons already stated, I decline to order a fresh trial. The Appellant is hereby discharged and he is to be, forthwith, released from the correctional facility where he is currently being held.

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