CRIMINAL LAW AND PROCEDURE – CRIMINAL TRIAL/PROCEEDINGS – Effect of the absence of an accused person at the address stage of a criminal trial


“A terse and succinct recap of the facts in this appeal is that during the trial of the Respondent on 20/11/2015; which date was fixed for final oral address, the Respondent was reported sick by his Counsel to the Court. See page 71 of the record. Despite the information, the trial Court directed that final oral addresses be taken in the absence of the Respondent and thereafter judgment was delivered on 1/12/2015, wherein the Respondent was convicted and sentenced to 7 years imprisonment. The Appellant’s stance and submission herein is that since the Respondent was ably represented by his Counsel in Court, who acted on his behalf, the proceeding cannot be vitiated for the mere absence of the Respondent in Court that day. I make haste to state here that the criminal trial of every accused person begins with arraignment and culminates with conviction and sentence in judgment. In the precedent relied upon by the Respondent’s learned Counsel, STATE V. LAWAL (2013) 7 NWLR (FT. 1354) AT PP.586, Mohammad, JSC, defined criminal trial to mean “the whole of the proceedings including the judgment and sentence” This therefore has been the constitutionally inalienable right enjoyed by every accused person. It is the Respondent’s constitutional right to be heard through his written/oral address or Counsel’s address on his behalf. Section 294(1) of the 1999 Constitution (as amended) contemplated written address or Counsel’s address to be part of the criminal trial or proceedings, when it provides that: Section 294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. Per NNAEMEKA-AGU, JSC in NDU V. STATE (1990) LPELR-1975(SC) (P. 45, PARAS. A-C) relying on Obodo v. Olamu & Anor (1987) 3 N.W.L.R. (Pt.59) 111, at p. 123-124, re-iterated this point thus: …this Court has stated before, the addresses of Counsel are an essential part of the trial. That can be the only possible inference from the fact that the constitution itself used the conclusion of addresses as a very important determinant of the time limit for delivery of judgments under Section 258 of the Constitution of 1979. See also STATE V. LAWAL (2013) 7 NWLR (PT. 1354) AT PP.585, wherein this Honourable Court held that “addresses by parties or their Counsel are an integral part of the hearing or trial of an accused person.” The trial Court having conducted the proceedings of 20/11/2015 in the absence of the Respondent jumped the guns and breached his constitutional right. The essence of the presence of an accused throughout his trial is to afford him an adequate opportunity to play his statutory role and liberty to respond at every stage of the proceedings personally or through a legal practitioner of his own choice for the purpose of ensuring fair hearing. The above has been reinforced and backed by the provision of the law that tried the Respondent. Section 210 of the Criminal Procedure Law, Ogun State, (pari materia with Section 210 of the Criminal Procedure Act) provides that: Every accused person shall subject to the provisions of Section 100 and of Subsection (2) of Section 223, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alterem partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Per PETERODILI, JSC in EYE V. FRN (2018) LPELR-43599(SC) (P. 28-30, PARA. A). The proceedings of 20/11/2015 having been fundamentally flawed on account of the trial Court’s failure to adhere to this law and the rule of natural justice of the Respondent’s right to fair hearing jeopardized and marred the proceedings since written/oral address or Counsel’s address is part and parcel of the trial of the Respondent, whose presence is required throughout until judgment. “It is an essential principle of criminal law and practice in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused…” See STATE V. LAWAL (2013) 7 NWLR (PT.1354) AT PP.586 For the trial Court to lighten the importance of the presence of the accused person (the Respondent) throughout his trial including address stage is lamentable and must be discouraged. “The addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court. Therefore it is a wrong supposition for a trial Court to believe that an address at the close of a party’s case is meant for it alone; the other side, throughout the trial of a case must not be blinded from what his adversary relies upon”. See Per SALIHU MODIBBO ALFA BELGORE, JSC in FORCABOS OVO OBODO V. STAFFORD OLOMU & ANOR (1987) LPELR-2189 (SC) (P.12, PARAS. B-D). The address stage having taken place, in the absence of the Respondent on 20/11/2015, without granting an adjournment even on the compassionate ground and reason that the Respondent was absent because he lost his wife and child; was disastrous to the whole proceedings. The trial Court having known about the necessity of the presence of an accused person throughout his trial ought to have treated his absence on 20/11/2010 with kid gloves and grant an adjournment until the presence of the Respondent was secured or possibly revoke his bail and issue a bench warrant against him. Per OGUNDARE, JSC in ADEOYE Y. STATE (1999) LPELR-134 (SC) (PP. 8-9, PARAS D-F) harped the point that “It is not part of our criminal jurisprudence to try a defendant in absentia. Section 210 of the Criminal Procedure Act requires a defendant to be present throughout his trial except in two cases provided for in Sections 100 and 223 of the Act.” Having emphasized that address of Counsel or written/oral address is part of the trial of the Respondent, which was done in his absence; the proceeding is bound to suffer a major setback. A similar scenario played out on the effect of conducting a trial in the absence of an accused person and came up before this Court in HASSAN V. STATE (2016) LPELR-42554(SC) (PP. 7-8, PARAS. F-D), wherein Per RHODES-VIVOUR, JSC, held: Once an accused person shows that there is an infringement of the principle of natural justice against him, if that proceedings in Court continued in his absence, it is my view that there has been an infringement of the principle and the trial should be declared a nullity. In the same vein, it was held in STATE V. LAWAL (supra) AT 586, that the exercise of allowing the trial to proceed in the absence of some of the accused persons rendered the entire proceedings of that Court including the judgment a complete nullity for not only denial of fair hearing but also for failure of that Court to give the affected Appellants even a fair hearing that may not be called a fair hearing. For the trial Court to have continued with the proceedings of 20/11/2015 in the absence of the Respondent was to invoke upon itself a grave blunder. In STATE V. LAWAL (2013) 7 NWLR (PT.1354) AT PP.585, this Honourable Court in considering Section 210 of the Oyo State Criminal Procedure Law, similar with Section 210 of the Criminal Procedure Act held strongly that “proceeding with the trial of the appellants in the absence of one of them constituted a serious breach of the law.” Thus, a judgment which is given without compliance with rules of Court and which non-compliance has breached a fundamental human right such as the right to fair hearing, is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See the dissenting view of Per NIKI TOBI, JSC in BARR. (MRS.) AMANDA PETERS PAM & ANOR V. NASIRU MOHAMMED & ANOR (2008) LPELR-2895(SC) (P. 71, PARAS. E-A). Furthermore, Per Tobi, JSC in EJEKA V. STATE (2003) LPELR-1061(SC) (P. 18, PARAS. A-C), on the effect of mistake of Judges in a criminal trial and its consequences, held that a mistake made by a Judge in a criminal trial can vitiate the proceedings and result in acquittal of the accused if the mistake is so fundamental to the trial to the extent that it has caused injustice to the accused person. The case of STATE V. LAWAL (2013) 7 NWLR (PT.1354) @ PP.565, being a decision of this Apex Court must be followed since the principle of criminal trial in the absence of the accused person was the stare decisis or precedent laid down by this Court, ought to have been followed by the trial Court. To attempt any distinction when the principle is clear is an invitation of wrath. Therefore, stare decisis presupposes that the law has been solemnly declared and determined in the former case. It thus precludes the Judge of the subordinate Court from changing what has been determined. In other words, they should keep the scale of justice even and steady not liable to waiver with every Judge’s opinion. See Per ONU, JSC in ADESOKAN & ORS V. ADETUNJI & ORS (1994) LPELR- 152 (SC) (P. 56, PARAS. A-F). I must declare therefore that, the remedial benefit enjoyable by the Respondent is the nullification of his trial and proceedings by the trial Court and an order of discharge and acquittal. Similarly, the learned Justices of the Court of Appeal, Ibadan Division, were right when they held that the decision in STATE V. LAWAL (2013} 7 NWLR (PT.1354) @ PP. 565 was on all fours with the circumstances in this case to vitiate the proceedings of 20/11/2015 conducted in the absence of the Respondent. The appeal is hereby dismissed and the judgment of the lower Court is affirmed.” Per UWANI MUSA ABBA AJI, JSC in STATE v. YANGA (2021-LCER-40500-SC) (Pp 5 – 14; Paras F – F)

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