CORAM

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HON. JUSTICE SAMUEL A. BOLA JUSTICE, COURT OF APPEAL

HON. JUSTICE M. L. ABUBAKAR JUSTICE, COURT OF APPEAL

HON. JUSTICE N. F. NTONG JUSTICE, COURT OF APPEAL

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PARTIES

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PASTOR ISAIAH OKOYE

APPELLANTS 

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COMMISSIONER OF POLICE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE, SENTENCING

 

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SUMMARY OF FACTS

The Appellant, Pastor Isaiah Okoye, and one Ngozi Ogbonna were jointly arraigned before the High Court of the Federal Capital Territory on a two-count charge of criminal conspiracy under Section 97 of the Penal Code Law and culpable homicide punishable with death under Section 221 of the same law. The charges arose from events that occurred in the year 2013 involving children brought to Christ Decide Sabbath Mission, the Appellant’s church, for prayers and deliverance.

The facts established at trial were that sometime in 2013, one Ngozi Ogbonna volunteered herself, her children, and the children of PW1, Mr. Osita Obi, including Chiemere Osita and Ogechi Osita, to the Appellant’s church for prayers. PW1 initially retrieved his daughter Chiemere Osita but returned both Chiemere and Ogechi Osita to the church for prayers and deliverance shortly afterwards. The prayer and deliverance session was concluded, after which the children and Ngozi Ogbonna stayed back at the church for a thanksgiving service.

It was alleged that the children were accused of being possessed by evil spirits, were chained together inside the church, and were subjected to a seven-day dry fast during which they were denied food and water. PW4, the elder sister of the deceased who was an eyewitness, testified that they were subjected to flogging, their hair was cut, the blood of a slaughtered goat was sprinkled on them, and whenever Ngozi Ogbonna brought food, the Appellant and his wife threw it away and prevented the children from eating. The deceased, Ogechi Osita, fell ill in the course of these events, began to vomit, could no longer eat, developed a high temperature, and died in the church on 24 May 2013. The Appellant was said to have placed her body in the boot of his car and driven away. PW1 testified that the body of his child was brought to his residence by the Appellant.

The prosecution called five witnesses and tendered several exhibits in evidence, including the confessional statement of the Appellant (Exhibit B), a medical report (Exhibit E), a police investigation report (Exhibit F), and photographs (Exhibits G1-G3). The Appellant testified for himself and called no witnesses. Ngozi Ogbonna never testified and was discharged and acquitted on a successful no-case submission.

The learned trial Judge discharged and acquitted the Appellant of the offence of criminal conspiracy but convicted him of culpable homicide not punishable with death under Section 222(7) of the Penal Code and sentenced him to seven years imprisonment. The Appellant appealed, raising six issues including the sufficiency of the evidence, alleged contradictions among prosecution witnesses, the admissibility of statements by persons not called as witnesses, and the computation of the period spent in pre-trial custody.

A critical development arose on appeal. The Record of Appeal was compiled and transmitted not by the Registrar of the trial court but by the Appellant’s own Counsel. Upon examination of the transmitted record, the Court of Appeal discovered that vital exhibits tendered at the trial were missing, including Exhibit E (the Medical Report), Exhibit F (the Police Investigation Report), material pages of Exhibit B (the Appellant’s statement to the police), and material pages of the co-accused’s statement to the police. Furthermore, the concluding pages of the trial judgment, containing the reasoning and conclusion of the trial judge, were also omitted. The Respondent, upon noticing these inadequacies, did not compile a supplementary record but instead sought to invoke Section 167(d) of the Evidence Act 2011 on the basis of withholding of evidence. The Court of Appeal declined to invoke that provision in the circumstances and instead struck out the appeal on the ground of an incomplete record of appeal.

 

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HELD

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The appeal was struck out on the ground that the Record of Appeal transmitted to the Court was incomplete. The Court found that vital exhibits tendered at the trial court, including the Medical Report (Exhibit E), the Police Investigation Report (Exhibit F), material pages of the Appellant’s confessional statement (Exhibit B), and the co-accused’s statement to the police, were all missing from the transmitted record. Additionally, the concluding pages of the trial court judgment were omitted.

The Court held that the Record was compiled and transmitted by the Appellant’s Counsel rather than by the Registrar of the trial court, and that the party who undertakes the compilation of the record assumes a primary duty to include all vital documents. The Respondent, having noticed the inadequacies, failed to compile a supplementary record and could not thereafter invoke Section 167(d) of the Evidence Act 2011 to allege withholding of evidence. The Court declined to hear the appeal on an incomplete record and, following the directive of the Supreme Court in Access Bank v. Onwuliri (2021) 6 NWLR (Pt. 1773) 391, struck out the appeal to enable a complete record to be compiled and transmitted, thereby avoiding a miscarriage of justice.

 

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ISSUES

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1. Whether having regards to the totality of evidence adduced at the trial court, the trial Judge was right in holding that the prosecution proved their case beyond reasonable doubt to warrant the conviction and sentence of the Appellant?

 

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RATIONES DECIDENDI

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COMPILATION OF RECORD OF APPEAL – DUTY OF PARTY WHO UNDERTAKES COMPILATION TO INCLUDE ALL VITAL DOCUMENTS

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But when an appellant or the Respondent undertakes to compile the records of proceeding pursuant to the rules of the Court, that party has assumed a primary duty to see that all vital documents and exhibits are included in the compiled records. – Per Samuel Ademola Bola JCA

 

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COMPILATION OF RECORD – RIGHT OF OTHER PARTY TO COMPILE ADDITIONAL RECORD TO CURE OMISSIONS

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If he discharges that duty and should the other party have the opinion that a particular document or some exhibits had not been included in the compiled records, the other party is at liberty to compile additional record that will then bring in that document. – Per Samuel Ademola Bola JCA

 

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INCOMPLETE RECORD – FAILURE TO COMPILE SUPPLEMENTARY RECORD AND ITS CONSEQUENCES

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It need be emphasised that where a Respondent feels that a record is incomplete, he is always at liberty to compile a supplementary record. If he fails to do so he cannot be heard to complain. – Per Samuel Ademola Bola JCA

 

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INCOMPLETE RECORD – COURT NOT ENTITLED TO SPECULATE ON MISSING MATERIAL AND OBLIGATION TO ENSURE COMPLETE RECORD

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On no account must the court deliberate on an incomplete record without seeing the material that was before the trial court, the appellate court would not be in a position to reach a just decision or resolution of the issues brought before it. A decision reached in such circumstances, affecting the right of the parties, would lead to a miscarriage of justice. – Per Samuel Ademola Bola JCA

 

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SECTION 167(D) EVIDENCE ACT – CANNOT BE INVOKED BY A PARTY WHO FAILED TO COMPILE SUPPLEMENTARY RECORD

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Where the Appellant compiled the Record, the Respondent is at liberty to compile additional records where necessary. Having failed to compile supplementary record, the Respondent cannot be heard to invoke the provision of section 167(d) of the Evidence Act 2011. The Respondents invocation of this section in the circumstance cannot stand. It holds no water. It is of no momentum. – Per Samuel Ademola Bola JCA

 

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INCOMPLETE RECORD OF APPEAL – THE PROPER ORDER IS TO STRIKE OUT TO ENABLE COMPILATION OF COMPLETE RECORD

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The Supreme Court said clearly per Abba Aji JSC that since the record of appeal was found incomplete the court ought not to hear the appeal until same is compiled and transmitted or to strike out the matter to give the parties another bite at the cherry. – Per Samuel Ademola Bola JCA

 

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CONTENTS OF A COMPLETE RECORD OF APPEAL – MUST INCLUDE ALL PROCEEDINGS, PROCESSES AND RELEVANT EXHIBITS

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A complete Record of Appeal consists of all the proceedings and processes filed in the lower court including the processes tendered as exhibits which are relevant to the just determination of the appeal. – Per Samuel Ademola Bola JCA

 

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INCOMPLETE RECORD – WHERE OMITTED DOCUMENT IS VITAL, THE RECORD IS DEFECTIVE AND CANNOT SUSTAIN THE APPEAL

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Where the documents filed and tendered were not made part of the record of appeal, the record is incomplete particularly if the document omitted is vital and necessary to decisively dispose of the real issue in controversy between the parties. – Per Samuel Ademola Bola JCA

 

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APPELLATE COURT’S POWER IN THE FACE OF INCOMPLETE RECORD – JURISDICTION LIMITED TO WHAT IS BEFORE THE COURT

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It is trite law that an Appellate Court cannot determine an appeal based on an incomplete Record of Appeal. It is not within the realms of the powers of this court to speculate on what could have been the content of the missing parts of the Record of Appeal. In the absence of a complete record of appeal, the only option left for this court is to strike out the appeal. – Per Mohammed Lawal Abubakar JCA

 

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INCOMPLETE RECORD – CONSTITUTES A SERIOUS PROCEDURAL DEFECT PREVENTING HEARING UNLESS IMMATERIAL OR PARTIES CONSENT

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The law is settled that an incomplete Record of Appeal is a serious procedural defect that prevents an appellate Court from hearing the case, as appeals are decided solely on the record provided. Such a defect is a fundamental flaw because the appellate Court lacks the full context needed or required for a just determination of the appeal. However, the appellate Court may still hear the appeal if the information so required is not material or substantial enough pause or stop the hearing and will not affect the decision or if parties’ consent to the required information that it should be waved. – Per Ntong Festus Ntong JCA

 

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WHEN APPELLATE COURT MAY HEAR APPEAL ON INCOMPLETE RECORD – THE TWO EXCEPTIONS

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An appellate Court hears an appeal on the record before it, it must ensure that the record are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records unless the parties by consent, agrees that the appeal should be so heard. And such a consent which, which will be a basic of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. There could however be another situation where an appeal could be heard when the record are incomplete. Such a situation will be where the missing part of the records, in the view or opinion of the Court, is so immaterial clearly so immaterial that it cannot affect the decision of the appeal one way or the other. – Per Ntong Festus Ntong JCA

 

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STRATEGIC WITHHOLDING OF EXHIBITS FROM RECORD – DETRIMENTAL TO JUSTICE AND SIGNIFICANCE OF MISSING VITAL EVIDENCE

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In the instant case, the tactical withholding of Exhibit B being the extra judicial statement of the Appellant by the Appellant without any compromise by the Respondent is detrimental to the justice of this appeal because such evidence is not just relevant but very vital to the determination of the appeal. Moreso, Exhibit E being the Medical Report of the deceased was not transmitted. This is particularly so because the said evidence if transmitted would be so unfavorable to the Appellant. – Per Ntong Festus Ntong JCA

 

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INCOMPLETENESS OF RECORD AS DEPRIVATION OF JURISDICTION – COURT’S INABILITY TO EFFECTIVELY DETERMINE THE APPEAL

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Accordingly, the incompleteness of the Record of Appeal deprives this Court of its means to effectively hear and determine the extant appeal and truly so. – Per Ntong Festus Ntong JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Penal Code Law, Sections 97, 221, 222(7)

2. Evidence Act, 2011 (as amended), Sections 138(1), 167(d)

3. Administration of Criminal Justice Act 2015, Section 416(2)(e)

4. Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 36

5. Court of Appeal Rules 2021, Order 8 Rule 1

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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1. C. I. OKOYE leading C. C. Adonu for the Appellant.

2. WILSON IORSHE with him M. O. Mue for the Respondent.