UMARU BUBA & YUSUFU ALH. ISA
April 9, 2025EZEKIEL ONWUSULU VS MR. JOSEPH ZAMBWA
April 9, 2025Legalpedia Citation: (2018) Legalpedia (CA) 83185
In the Court of Appeal
HOLDEN AT YOLA
Wed Nov 28, 2018
Suit Number: CA/YL/209C/2017
CORAM
PARTIES
EMEKA EZE
FEDERAL REPUBLIC OF NIGERIA
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant had made his way to Jimeta Modern Market to collect a consignment of goods comprising of 4 (four) cartons. In the process of evacuating the goods he was confronted by the personnel of the National Drug Law Enforcement Agency who, acting on information, demanded to know the contents of the 4 (four) cartons in his custody. Thereafter the Appellant was whisked away for further investigation at the National Drug Law Enforcement Agency Office, Yola, along with the person named “Dennis” who the Appellant had initially introduced to the National Drug Law Enforcement Agency officials as his Master and on whose instructions he was at the Jimeta Modern Market to collect the consignment of 4 (four)cartons but later changed his story. The Appellant later told the National Drug Law Enforcement Agency officials that the Master on whose instructions he collected the cartons was Emmanuel Ugwoke now at large and not Dennis, the man arrested along with him at his promptings, hence Dennis was released and the Appellant alone was arraigned and charged at the Federal High Court, Yola on the allegation of knowingly being in possession of 48 Kilograms of Tramadol drug, a substance said to be a narcotic analgesic, similar to cocaine, an offence contrary to and punishable under Section 19 of the National Drug Law Enforcement Agency (NDLEA) Act Cap N 30. LFN, 2004. The amended charge was read to the Appellant as the accused and he pleaded not guilty to the charge. Consequently, trial in the case commenced with the prosecution calling evidence of 4 (four) witnesses and tendered several Exhibits. In his defence, the Appellant testified for himself. At the end of the trial, the lower Court returned a verdict of guilt against him and accordingly convicted and sentenced him to a term of imprisonment of 5(five) years. It is against this Judgment and order of the Federal High Court, Yola that the Appellant has now appealed to the Court of Appeal, Yola on 12 (twelve) grounds vide the Notice of Appeal.
HELD
Appeal Allowed
ISSUES
Whether or not the allegation by the appellant that the learned trial Judge tore a portion of Court’s record in the course of the evidence in chief of Pw1 is sustainable in law? Whether viewed from the totality of the case (including evidence of witnesses and Exhibits tendered and admitted through them) the trial court was right in law in holding that the respondent had proved its case against the appellant beyond reasonable doubt. Whether the trial court’s delivery of Judgment outside the period allowed by the Constitution has occasioned any miscarriage of Justice as to warrant the Judgment being set aside.
RATIONES DECIDENDI
RECORD OF PROCEEDINGS – PROCEDURE FOR CHALLENGING THE RECORD OF PROCEEDINGS OF A TRIAL COURT AND EFFECT OF FAILURE TO COMPLY WITH SAME
“The procedure for challenging the record of Proceedings of trial court is more than mere complaint made by way of a ground of appeal raised and subsumed in the Notice of appeal. A person or party whose complaint is over the correctness of the record of appeal or record of proceedings of the trial court must go by the normal procedure known for challenging such records. The normal procedure is for that party to swear to an affidavit challenging the said record of proceedings. It is his duty to set out the facts or part of the proceedings which is wrongly in the records or what happened during the proceedings, which is not included in the proceedings by the trial court. This affidavit will then be served on the trial Judge or registrar of court and also the counsel on the other side who may or may not file a counter-affidavit. See decisions in: AgbeofuB. Brisdibe (2005) 10 NWLR (Pt. 932 (CA); Ogun Vs. Akinlelu (1999) 10 NWLR (Pt. 624) 971, 682; UBA Plc Vs. Ijor (2001) 10 NWLR (Pt. 722) 589; Mokwe Vs. Williams (1992) 11 NWLR (Pt. 528) 309; Agwangso Vs. Nakande (2001) 9 NWLR (Pt. 672) 341; Idakula Vs. Richards (2001)) 1 NWLR (Pt. 693) 111; Brittania – U Nigeria Ltd Vs. Seplat Pet Dev. Coy Ltd &Ors (2016) LPELR-400007 (SC). Where there is failure on the part of the person raising the complaint the record of appeal will be presumed to be correct and accurate. See Idakula V. Richards (supra). The Rules of this Court do not prohibit the procedure outlined above from being followed and acted upon in this court in the bid for a successful challenge of the record of trial courts. In the observance of this procedure the person or party need to caution himself without being uncomplimentary or scatting and careless in his remarks about a Judge, where the party making it (as in this case) has no facts to substantiate his claim. Such despicable utterances and remarks must stop: Ezeuko V. State (2016) All FWLR (Pt. 831) 1509 (SC). Since the steps or the procedure for challenging the record of proceedings were not followed in this case, the parties including, the appellant and indeed this court are bound by what is before us as the record of appeal, which in any case can be presumed to be correct so far as the contrary was not shown or proven. See B-U (Nig.) Ltd Vs. SPDS Ltd (2016) All FWLR (Pt. 826) 443; Tezaco Ltd PanemaInc Vs. shell Pet. Dev. Co. Ltd (2002) FWLR (Pt. 96) 529; Mohammed V. State (2016) All FWLR (Pt. 826) 582, 600-601 (SC).-
EVIDENCE – APPLICABILITY OF SECTION 167(D) OF THE EVIDENCE ACT
“The first point I want to make in this regard is the fact that the provision at Section 167 (d) does not relate to calling of any particular person as a witness as to amount to withholding his evidence in the event that the particular person was not called as a witness. Paragraph (d) of Section 167 of the Evidence Act, clearly refers to “evidence” only, that is, “evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it” .Since Section 167(d) is not about failure to call certain person as a witness the provision cannot be invoked merely because the Prosecution or the respondent as in this case failed to invite Dennis of Dannitex Pharmacy to testify in the case. See: Tewoghade Vs. Akande (1968) NWLR 404; Ogbodu V, The State (1987) 3 SC 497, 526; M.SC EzembaVs. S. O. Ibeneme (2007) 7 SCNJ 136, 142; Musa Vs. Yerima (1997) 53 LRCN 2549, 2533; ayayi Yusuf & Anor. Vs. Akinsuvinoye (2013) LPELR-20531(CA).Paragraph (d) of Section 167 of the Evidence Act is about failure to call evidence. Thus, where the prosecuting agency failed to produce any relevant piece of evidence upon demand made by the party on the other side, the presumption under Section 167(d) of the Evidence Act, will apply. See: Adekoya V. The State (2010) LPELR-3604 (CA) Kareem Sunday Vs. The State (2014) LPELR-24415 (CA);H.M.S.L.S Ltd V. First Bank (1991) 1 NWLR (Pt. 167) 290; Onwujuba V. Obinenu (1991) 4 NWLR (Pt. 183) 16; Oknokwo Vs. Okechukwu (2012) LPELR-15334 (CA). This presumption applies subject only to the condition that (i) the appellant having to discharge the onus of proof on him regarding the existence of that document or evidence. See: Gava Corp. Ltd Vs. Federal Republic of Nigeria (2014) LPELR -22749 (CA) (ii)The Defendant or appellant made a demand or applied to have the statement but the prosecution refused to avail him of the statement. See: Sunday Vs. The State (supra). –
“SHALL” AND “MAY” – INTERPRETATION OF “SHALL” AND “MAY” WHEN USED IN A STATUTE
“It has been argued that Exhibits Pw4A, Pw4B and Pw4C were inadmissible documents so far as the statement were made or taken in the absence of legal practitioner or such other person named in the Act. It is provided at Section 17(2) thus: – “Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the legal Aid Council of Nigeria or an official of Civil Society Organization or a justice of the peace or any other person of his choice. Provided that the legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.” The draftsman, no doubt, has his reasons for enacting such a law. However whatever reason there is behind the making of that piece of legislation, reproduced above, is, I think, beyond the scope of this exercise, at least for now. My concern, rather, is whether by that provision, the presence of a legal Practitioner or such other person mentioned in that subsection, is mandatory in all cases where and when the statement of a suspect is being taken? That is the question. I have read this provision over and over again and I form the opinion that subsection (2) of Section 17 cannot be detached from Section 17(1) and the same cannot therefore be construed independently of that subsection [17(1)] of the same Section. Subsection (1) of section 17 provide thus: “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement” When a suspect who is being investigated is willing and volunteers to make a statement, the officers investigating his case have no choice but take that statement. That, to my mind, is the purport of that provision under Section 17(1) of the Act in the light of the mandatory nature that the provision holds. The use of the word “shall” therein conjures, compulsiveness and when that word is used in a statute as this, it carries compulsory meaning as denoting obligation, a command to do or not to do a particular act. See Ogidi Vs. State (2005) 5 NWLR (Pt. 918) 286, 327. Onochie Vs. Odegwu (2006) 6 NWLR (Pt. 875) 65, 89-90. Subsection 1 of Section 17 of the Act, is followed by subsection 2 which continues with the words “such statement may …” thus sub-section 2 of Section 17 is not detached from sub- Section 1. The legislature however in its wisdom, chose the use of the word “may” at sub-section 2 of section 17, as opposed to “shall” at subsection (1) of Section 17. This change in legislative style or language in both subsections of the same Section 17 of the Act can only mean that “shall” and “may” cannot have the same interpretation or meaning hence the use of “may” at subsection (2) of Section 17 must be construed as not being mandatory but directory viewed from the context in which the word “may” was used. See: Auchi Polytechnic Vs. Okuoghae (2005) 10 NWLR (Pt. 933) 279. The officer taking the statement of the suspect has a discretion to exercise but I do not see a situation where the officer in the exercise of his discretion will take or record a statement without reference to the suspect whose statement is being taken. Afterall the Police officer or any other person taking the statement pursuant to rule 2 of the Judges Rules is mandated to caution the suspect as to his right to remain silent, his right to volunteer statement or not. This, option available to the suspect in my view, accords with Section 35(2) of the 1999 Constitution (as amended) and Section 6(2) of the Administration of Criminal Justice Act, 2015. In Edewor Vs. Uwegbe (1987) LPELR – 1009(SC), the apex Court held thus: – “Generally, the word “may” always means “may”. It has long been settled that “may” is a permissive or enabling expression. In Meesy V. Council of the Municipality of Yass (1922) 22 SRNS. W494 Per Cullen C.J. at pages 497-498, it was held the use of the word “may” prima facie conveys that authority which has power to do such an act has an option either to do it or not to it…” Words used in a statute must be given their ordinary and natural meaning: Animashaun V. Ogundima (2016) All FWLR (Pt. 832) 1783.
CONFESSIONAL STATEMENT –NATURE OF CONFESSIONAL STATEMENT ADMISSIBLE IN EVIDENCE
“A free and voluntary Confessional Statement is admissible evidence under Section 29(1) of the Evidence Act, no more no less. –
CONFESSIONAL STATEMENT – WHETHER A RETRACTED CONFESSIONAL STATEMENT CAN BE ADMITTED BY THE COURT
“The law is that the retraction of a statement described as the confessional statement of an accused person will not stop the court the necessity of having to admit that statement in evidence. See: Ubierho Vs. State (2005) 5 NWLR (Pt. 919) 644.The court can also act on such statement. It is however incumbent on the trial Judge that before conviction can properly be founded on the statement, to test the credibility of the accused person as to his retraction of the statement and the weight to attach to that confessional statement in terms of its truthfulness or otherwise in line with other credible evidence and circumstances of the case. See: R. Sykes (1913) 8 CAR; Alabi V. State (2014) LPELR-22249 (CA); Onwumere V. State (1991) 4 NWLR (Pt. 186) 428, 440. The retraction of a Confessional Statement does not make it inadmissible: AkpanVs. State (1992)6 NWLR (Pt. 248)439; Ubieho Vs. State (2005) 5 NWLR (Pt. 919) 644; Akinmoju V. State (2000) 6 NWLR (Pt. 662) 608. Going through the record of Judgment, at pages 110-113, I find that the court below painstakingly satisfied itself of the truthfulness of the statement contained in Exhibit Pw4B, in reference to evidence of witnesses called by the Prosecution and other documents tendered in the case in obedience to the principle enunciated in R. Sykes (supra). –
RIGHT TO AN INTERPRETER – CIRCUMSTANCES WHEN THE NEED FOR AN INTERPRETER IS DISPENSED WITH
“On the second point of objection that is, that the appellant was not afforded his right to an interpreter in relation to the statements attributed to him as his confessional statements, the appellant and his counsel on this point seem to speak from both ends of the mouth, viewed from the fact that it was the appellant who resiled as being the maker of the Statement attributed to him, he cannot turn around to complain that the contents of those statements were not explained or interpreted to him. In any case I find on the printed record of evidence that Exhibits Pw4B and Pw4C were recorded from the appellant by Pw4 in English language, the language that both the recorder and the appellant spoke and which he (appellant)understood as correct hence the need for an interpreter did not arise so far as the statement was not recorded in another language different from the language spoken by the accused. See Nwaeze V. State (1996)2 NWLR (Pt. 428) 1.-
OFFENCE OF UNLAWFUL POSSESSION – INGREDIENTS A PROSECUTION MUST PROVE TO SUCCEED IN SECURING A CONVICTION FOR UNLAWFUL POSSESSION OF PROHIBITED DRUGS
“The law under reference is Section 19 of the National Drug Law Enforcement Agency Act, 2004read together with Section 135 of Evidence Act. The Appellant had been arraigned and charged with the offence under Section 19 of the National Drug Law Enforcement Agency Law Act, 2011. Section 19 of the Act read thus: – “Any person who, without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, Heroine or any other similar drugs shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years” There can be no question given the fact that the drugs listed as cocaine, LSD, heroine are by virtue of that provision, proscribed or prohibited drugs. See: Okewu Vs. Federal Republic of Nigeria (2012) 9 NWLR (Pt. 1303) 327. To succeed, therefore, the prosecution is bound to prove the following elements that constitute the offence namely: – i.The accused was found in possession ii. The accused person is/was knowingly in possession of the suspected drugs iii. The accused possess the drugswithout lawful authority. iv. The drugs are proved to be cocaine, LSD, heroine or other similar drugs. See:Ugwaonyi V. Federal Republic of Nigeria (2013) All FWLR (Pt. 662) 1655, 1674; Ugochukwu V. FRN (unreported) Appeal No. CA/YL/133C/2005,Judgment of this court delivered on the 27th June, 2016; Federal Republic of Nigeria Vs. Iweka (2013) 3 NWLR (Pt. 341) 285, 320-321.-
BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROVING POSSESSION OF PROHITED DRUGS/SUBSTANCE WITHOUT LAWFUL AUTHORITY
“At the point of evacuating the product, the appellant was apprehended and or arrested along with those 4 (four) cartons. This fact of the arrest of appellant with those 4 cartons is thus not contestable hence the fact of possession was established. However, this fact that the appellant was found in possession without more does not meet the requirement of the law. An offence is only constituted by both the physical (actus reus) and the mental (mens rea) elements. Hence the prosecution must go further. It is incumbent on him to prove that the accused or the appellant, knowingly was in possession of suspected drugs. The element knowingly being in possession was incorporated into the amended charge which read thus: “That you EMEKA EZE, male, adult, 21 years old on or about the 19th day of February, 2016 at Jimeta, Yola-North Local Government Area of Adamawa State, within the jurisdiction of this Honourable Court without lawful authority knowingly possessed 48 Kilograms of Tramadol drug, narcotic analgesic similar to cocaine and thereby committed an offence contrary to and punishable under Section 19 of the National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria 2004. Given the evidence of both Pw2 and Pw4 who testified for the Prosecution and the finding made at the trial court at page 108 of the record, the appellant knew that the substance found in his possession was Tramadol. The trial court found as follows: – “The arresting officer (Pw1 and Pw4) testified that they asked the defendant the content of the carton at the point of arrest and told them it was Tramadol, but that it belonged to his master. Thus the defendant denied the ownership of the drugs but not the possession…” The element of being in possession without lawful authority is a necessary component of the offence established by Section 19 of the National Drug Law Enforcement Agency Act. The expression “without lawful authority” is the opposite of “with lawful authority”. What constitutes lawful authority has been explained in Black’s Law Dictionary 9th edition to mean: “those person (such as the police) with the right to exercise public power, to require obedience to their lawful commands and to command or act in the public name.” The onus thus, is on the prosecution to prove that the suspect was in possession of the substance without lawful authority. –
STANDARD OF PROOF – DUTY ON THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT
“The duty is on the prosecution is to prove his case beyond reasonable doubt. In other words each and every ingredient which constitute the offence has to be proved. The method by which the prosecution can establish his case may be by way of direct oral evidence elicited pursuant to Section 126 of the evidence Act or by way of proof by the confessional statement of the accused person tendered and admitted or by way of admissible circumstantial evidence of prosecution witnesses. In all these cases it is the prosecution and he alone that the law placed the duty to call evidence to prove his case. It is not for the court to make up for the deficiencies in the evidence of witnesses called by the prosecution. To hold otherwise is to descend into the arena of conflict. So, what evidence is there to establish the fact that the appellant was knowingly in possession of Tramadol without Lawful authority viewed from the provisions of Section 19 of the NDLEA Act and Section 135 of the Evidence Act? None. My answer is in the negative. Prosecution witnesses were not forthcoming on this aspect of their case but there is need for them to lead that evidence no matter how minimal it is indicating that the appellant was not lawfully in possession of the substance found on him. It is only then can the onus shift on the accused person to justify in law, his possession of the substance. This is where Section 136 and 140 Evidence Act came in relevant. See: Billie Vs. State (2016) 15 NWLR (Pt. 1535) 363, 367 para F-G. In this case on appeal the prosecution failed to establish the element of possession without lawful authority and by this failure the prosecution cannot be said have proved their case. The decision in Chinwedu Ogochukwu Vs. Federal Republic of Nigeria (unreported) (supra)is authority on this point. Although the attention of the court below was drawn to it, the court would not toe the line and be properly guided. This is not how it is done. In the hierarchy of court system, the decisions of higher courts are binding on lower courts unless there are reasons for departing from those decision of superior courts. See: OkomkodoVs. Federal Republic of Nigeria (2011) LPELR-4723 (CA); SPDC Nigeria Ltd Vs. Ezeukwu & Ors (2010) LPELR- 4911(CA). The trial court has not done well in this regard-
EJUSDEM GENERIS RULE – INTERPRETATION OF STATUTE UNDER THE EJUSDEM GENERIS RULE
“The law, unfortunately did not say what the constituents of the listed drugs are other than that they are prohibited or proscribed drugs. Neither the Act nor the Schedule to the Act has defined those constituents. There is the need for the legislature to take another look at this law. In the interpretation of words or statute under the Ejusdem generis Rule, has it that where particular words are followed by general words, the general words must be interpreted to be similar in meaning to the particular words as held in: Nasir V. Bonari (1969) All NLR 35; Jamal Steel Structure Ltd Vs. African Continental Plc (1973) 11 SC 77. The Supreme Court in Okewu V. Federal Republic (2012) 9 NWLR (Pt. 1305) 327 in interpreting the phrase “any other similar drugs” to include cannabis Sativa in Section 10 (h) of National Drug Law Enforcement Agency Decree, held at page 354 that: “There is no doubt that all the drugs mentioned in Section 10(h) of the law that is, Cocaine, LSD and Heroin with Cannabis Sativa otherwise known as Indian Hemp are substances that are known to alter user’s perception or consciousness. They are also narcotic drugs hence; they are prohibited by law. In other words, Cocaine, LSD, Heroin and Indian Hemp are prohibited in the same way because they are all drugs that alter one’s perception or consciousness hence the prohibition by law. As a result, I am not in the slightest doubt and I hereby say with conviction that the court below was right to hold that the substance called Indian Hemp, otherwise known as cannabis sativa falls within the phrase “any other similar drugs” used in Section 10(h) of the NDLEA Act pursuant to which the appellant was charged, convicted and sentenced by the tribunal” The drugs specifically listed in Section 19 of National Drug Law Enforcement Agency Act, 2014 are Cocaine, LSD and Heroine. By virtue of the law prohibiting it, these substances are also negative drugs in so far as those drugs alter person’s perception and consciousness, they are negative drugs and so they are prohibited including “any other similar drugs” that will be interpreted within the category of negative drugs. Pw3 speaking of the contents of Tramadol in his evidence explained vide Exhibits Pw1A and Pw1B that Tramadol is a “Synthetic opium and it is used in medicines as a narcotic analgesic for treatment of mild to moderate severe pain upon prescription by a qualified medical doctor…” see page 56-58 of the record of appeal. This evidence of Pw3 on Tramadol drugs with which the appellant was arrested, no doubt is in contradistinction with such prohibited drugs listed under Section 19 of the National Drugs Law Enforcement Agency Act, 2004. In other words Tramadol drugs is a medicinal narcotic analgesic used for the treatment of mild to moderate severe pains which is prescribed by a medical authority, cannot fall within the category of “other similar drugs” to cocaine, LSD and Heroine listed at Section 19 of the National Drug Law Enforcement Agency Act, 2004. The finding made at the trial court at page 109 of the record projecting Tramadol drugs as a narcotic substance prohibited within the meaning of Section 19 of the Act can therefore, not stand hence the prosecution has also not proved that Tramadol is a drug similar to cocaine, LSD, heroin. The court below ought to have discharged and acquitted the Appellant in this regard. –
CONFESSIONAL STATEMENT – GROUNDS ON WHICH A CONFESSIONAL STATEMENT CAN GROUND CONVICTION
“An accused person can also be convicted upon his own confessional Statement alone provided that the statement is voluntary, direct, positive and unequivocal as to the entire ingredients of the offence of which the appellant was convicted. See Shodiyo Vs. The State (2013) LPELR -211717 (SC) –
DELIVERY OF JUDGMENT – WHETHER A JUDGMENT DELIVERED OUTSIDE THE STATUTORY PERIOD CAN BE ANNULLED
“The Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides at Section 294(1) thus: – “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” By the clear wordings of the provision above, all courts, at least courts established under the Constitution have 90 days within which to deliver a decision in writing after conclusion of evidence and final addresses. A decision of court is defined to include court orders and Judgment. See: Falola V. Union Bank (2005) 2 SC (Pt. II) 62, 65; Ogola V. Ogola (2016) 2 SC (Pt. I) 61, 76-77. Section 294(1) of the Constitution did not provide for delivery of Judgment “within three months” as wrongly canvassed by the learned counsel for the appellant. That used to be the position under the defunct Constitution of Federal Republic of Nigeria, 1979.“Three months” is not the same as “90 days.” There is a world of difference between the two. A “month”, by definition has reference to the Gregorian calendar as the months between January to December. Interpretation Act at Section 18 (1).The Oxford Advanced Learner’s Dictionary, 9th edition, page 951 defines “month” as “any of the twelve periods of time into which the year is divided. The life span of a calendar month runs from the very first day in any calendar month to the last day of that same calendar month and so progressively and successively, the month rekindles itself to the next hence “three months” cannot be the same as “90 days” which the current Constitution provides for at Section 294(1). Any Judgment or decision delivered outside that period of 90 days is a contravention of that provision of the Constitution, which nonetheless will not lead to the Judgment or decision being annulled. See: Ogundale Vs. Fasa (1999) 9 SC 4 OR (1999) 12 NWLR (Pt. 632) 662; Mohegbadi V. Amon Ajayi (2011) LPELR 450 (CA); Didia Maka Vs. Osakwe (1999) 3NWLR (Pt. 107); Nayashu V. Agazie (2006) 5 NWLR (Pt. 973) 260; Onyewuke Vs. Modu Sule (2011) LPELR-9084 (CA). A Judgment delivered outside 90 days can be annulled only where the party complaining of non-compliance has suffered a miscarriage of justice resulting from the delay in the delivery of that Judgment or decision. This is the effect of subsection (1) and (5) of Section 294 of the Constitution read together. See Ogundele V. Fasu (supra). The duty however is on the person or party who complained of undue delay to establish that by reason of that delay the Judgment has negatively impacted on him to bring his case within Section 294 (5) of the 1999 Constitution (as amended). It is for him to establish the fact that by reason of the delay or undue delay in the delivery of Judgment, a miscarriage of Justice was occasioned. –
MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES A MISCARRIAGE OF JUSTICE?
“What Constitutes “a miscarriage of Justice” is hydra-headed depending on the facts of any particular case. See: OgundayoVs. Adelaja (200() 6-7 SC (Pt. 111) 91, 127. It is however generally understood that a miscarriage of Justice is occasioned where there is a “departure from the rule which permeate all judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all. See Dev V. Roy (1946) A.C. 508-. In Onogoruwa Vs. The state (1993) 7 NWLR (Pt. 305) 49, the apex Court held that: – “Miscarriage of justice means failure on the part of court to do justice. It is justice misplaced, unappreciated or misappropriated. It is an ill conduct on the part of the court which amounts to injustice” See further decision on this point in: Ojo Vs. Amibere (2004) 5 SC (Pt. 1) page 1; Okonkwo Vs. Ndo (1997) 8 NWLR (Pt. 519) 16; Ivolo Vs Uka (2002) 7 SC (Pt. 11) 77. Gbademosi Vs. Dairo (2007) 1 SC (Pt. 11) 151, 171; Pam Vs. Mohammed (2008) 5-6 SC (Pt. 1) 83; Oguntayo Vs. Adelaja (supra) or (2009) All FWLR (Pt. 495) 1661. –
MISCARRIAGE OF JUSTICE – DETERMINATION OF WHETHER A PARTY HAS SUFFERED MISCARRIAGE OF JUSTICE AS A RESULT OF DELAY IN THE DELIVERY OF JUDGMENT
“In determining whether a party has suffered any miscarriage of justice as a result of delay in the delivery of judgment between the conclusion of trial and the delivery of Judgment, the emphasis is not on the length of time simpliciter but the effect the delay produced in the mind of the court. Thus it has been held that if the evaluation of evidence bears a mark of freshness and its findings of fact are supported by credible evidence, its Judgment will not be set aside. See: Diclia & Ors Vs. Osakwe (1999) 3 NWLR (Pt. 107) 101; Ayufulu Vs. Agezie (2006) 5 NWLR (Pt. 973) 260. Learned appellant’s counsel alluded to this point in his brief of argument at pages 25-27 to support his submission that a miscarriage of justice was occasioned: 1.By the failure of the trial court to evaluate evidence led in the case. 2.Failure to consider vital issues raised by the defendant 3.The complaint that the prosecution withheld evidence was not considered by the trial court. 4.The trial court made conclusion against the appellant which are not supported by evidence. 5.The lower court did not abide by the decision of this court in Ugochukwu Vs. Federal Republic of Nigeria (unreported) Appeal No. CA/YL/133C/2015. Every court is bound to assess all evidence placed before it. Evidence, which the courts are duty bound to consider and evaluate for the purpose of according probative value to, must be evidence properly received by it and is before the court. Thus the court is not bound to consider or evaluate what is not before it as evidence although the courts are at liberty to construe against that party who withheld any piece of evidence which may be relevant to the case. I have earlier in this exercise addressed this question of the presumption created by Section 167(d) of the Evidence Act and the inapplicability of same to the appeal case on hand hence the appellant cannot in any view in the circumstance take advantage of this provision to contend that the late delivery of Judgment at the court below impacted negatively on him. Neither do I take it to mean that by the reason of the late delivery of Judgement, the trial court had lost impressions of witnesses that appeared before her as to occasion a miscarriage of Justice. Oputa, JSC (of blessed memory) put the law in a better perspective in the case of Dibiamaka Vs. Osakwe (1989) 3 NWLR (P. 107) P. 101, 114thus: – “And the law is that if inordinate delay between the end of trial and the writing of the Judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of Justice and there, but only there, will an appellate court interfere…” –
CASES CITED
Not Available
STATUTES REFERRED TO
Administration of Criminal Justice Act, 2015
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016
National Drug Law Enforcement Agency (NDLEA) Act Cap N 30. LFN, 2004
