SUMANYA ISSAH TORRI v THE NATIONAL PARK SERVICE OF NIGERIA (CA/A/37/C/05) [2008] NGCA 1 (22 April 2008)

OLUFUNMILOLA OYELOLA ADEKEYE

....... Justice, Court of Appeal

MARY PETER-DDILI

....... Justice, Court of Appeal

OYEBISI FOLAYEMI OMOLEYE

....... Justice, Court of Appeal

SUMANYA ISSAH TORRI

Appellants

THE NATIONAL PARK SERVICE OF NIGERIA

Respondents

RATIO DECIDENDI

1

CRIMINAL LAW AND PROCEDURE - APPLICATION FOR LEAVE TO PRFER A CHARGE: What is the procedure for application to prefer a criminal charge?

"An application for Leave to prefer criminal charge pursuant to Section 185(b) of the Criminal Code shall be made in accordance with the relevant rules of the Criminal Procedure (Applications for Leave to prefer charge in the High Court) Rules. Under the said Rules, the application shall be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, proof of evidence that is, the written statements of the witnesses and the accused person, which shall be relied on at the trial. The applicant who must be the Attorney-General of the Federation or of a State (depending on the nature of the charge) or a counsel in his office acting on his behalf shall also inform the court that no application for such Leave has been made previously in the case and that no preliminary investigation is being conducted in any Magistrate Court. Acting under the said Rules, the trial Judge has the discretion to grant or refuse the application, and this discretion can only be exercised after the trial Judge must have examined the proof of evidence and all the documents filed in support of the application."per OMOLEYE, J.C.A.(Pp.25-26,Paras F-D)

2

COURT - DISCRETION OF COURT: Whether the trial judge must examine all the materials and consider the applicable law before he can exercise discretion?

"Before it can be said that the learned trial Judge exercised his discretion, that is to say with sufficient, correct and convincing reasons and not on his whims and fancies, he must have examined all the materials before him and considered the applicable Law. See the case of: U.B.A. Ltd V. Stahibu GMBH and Co. KB (1989) 6 SC (Pt. 1) p. 22"per OMOLEYE, J.C.A.(P.27,Paras. A-B)

3

COURT - DISCRETION OF COURT: Whether discretion exercised judicially and judiciously by a court is subjected to any question by another court higher in authority

"It is an established principle of law that discretion exercised judicially and judiciously is not to be subjected to any question by another court higher in authority and jurisdiction. See the cases of: (1) Solanke V. Ajibola (l968) 1 All NLR p. 46; (2) Saraki V. Kotoye (1990) 4 NWLR (pt. 143) p. 144 and (3) Royal Exchange Assurance (Nig) Ltd V. Aswani Textiles Ltd (1992) 3 NWLR (pt. 227) p1" per OMOLEYE, J.C.A(P.46-47, Paras.G-A)

4

PRACTICE AND PROCEDURE - ERROR IN PROCEEDING: Whether an error in proceeding can render null and void the decision of the court

"It is not the function of a court of justice to help any party in a case including an accused person to wriggle out therefrom. The court is an unbiased umpire. Assuming without conceding that there was any error in the trial of the Appellant at the lower Court, it was not one that can vitiate and render null the entire proceedings. For it is only where such error is so fundamental to the trial to the extent that it has caused injustice to the accused that will necessitate the setting aside of the trial and the acquittal of the accused on appeal. See the cases of: (1) Oje V. Babalola (1991) 4 NWLR (Pt 185) p. 267; (2) Odukwe V. Ogunbiyi (1998) 8 NWLR (pt. 561) p. 339 and (3) Ejeka V. State (2003) 7 NWLR (Pt 569) p, 408 In the case of: Chief of Air Staff Vs Iyen (2005) 6 NWLR (pt. 922) p. 496 at pgs 527 - 528 paras H & A-B. My Lord Ejiwunmi JSC (Rtd.) referred with approval to the earlier decision or the Supreme Court in the case of: Eyorokoromo V. State Supra; and held that: "- - - the power of the appellate court to order a retrial where the original trial was a nullity and a review of past cases where the court had either declined to order a retrial or had ordered one, and from which the following principles were formulated: Firstly, that the very foundation of the trial, that is, the charge or information, may be null and void' secondly, the trial court may have no jurisdiction to try the offence, and thirdly, the trial may be rendered a nullity because of some serious error or blunder committed by the Judge in the course of the trial"per OMOLEYE, J.C.A(Pp.45-46,paras. C-D)

5

CONSTITUTIONAL LAW - FAIR HEARING: Whether the breach of the fundamental right of fair hearing has its implication on proceedings.

"The right to fair hearing is an extreme fundamental right in the Constitution and a breach thereof has its implication on the proceedings. Thus under Section 36(6) (a)-(e) of the 1999Constitution, every person charged with a criminal offence is entitled to be heard. This right is inalienable and an indispensable requirement of any judicial decision. However, fair hearing is not some kind of abstract principle. It entails a trial done in accordance with the rules or natural justice. Natural justice in the broad sense is justice done in circumstances which are Just, equitable and impartial. Fair hearing is in the procedure followed in the determination of the case and not in the correctness of the decision. See the cases of: (1) State V. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33 and (2) Kim V. State (1992) 4NWLR (pt. 233)p.17" per OMOLEYE, J.C.A(Pp.42-43,Paras E-B)

6

APPEAL - FORMULATED ISSUES: Whether the Court of Appeal is free to adopt the issues formulated by parties or even formulate issues which it considers appropriate.

"The Court of Appeal is free to adopt the issues formulated by parties or even formulate issues which it considers appropriate for the determination of the real complaints in an appeal. See the cases of: (1) Ikegwuoha V. Ohawuehi (1996) 3 NWLR (Pt. 435) p, 146 and (2) Aduku V. Adejoh (1994) 5 NWLR (pt. 346) p. 582".per OMOLEYE, J.C.A.(Pp.17-18, Paras G-B)

7

CRIMINAL LAW AND PROCEDURE - GUIDELINES FOR VALID ARRAIGNMENT: What are the guidelines for a valid arraignment and plea taking?

"For there to be a proper and valid arraignment of an accused person and the taking of his plea in accordance with Section215 of the Criminal Procedure Act, the following guidelines must be adhered to, that is: (a) The accused person to be tried shall be placed before the trial court unfettered; and (b) the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the trial court by the registrar of the court or other officer or the court; and (c) The accused person shall then be called upon to plead instantly to the charge; and (d) The plea or the accused person shall also be instantly recorded. The above stated requirements of Section 215 or the Criminal Procedure Act are mandatory and not merely directory as they are preceded by the word "shall? Failure to comply with any of the requirements in a criminal trial will render the whole proceedings, that is, trial, conviction and sentence passed on an accused person, a nullity. Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provisions of Section 215 of the Criminal Procedure Act. See the cases of: (1) Eyorokoromo V. State (1919) 6 - 9 SC P 3; (2) Kajubo V. State (1988) 1 NWLR (pt. 75) p. 721; (3) Rufai V. State (2001) 13 NWLR (Pt. 731) p. 718 and (4) Amala V. State (2004) 12 NWLR (pt. 888) p. 520. Section 36 (6) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999 provide as follows: "36. - (6) Every person who is charged with a criminal offence shall be entitled to - (a) Be informed promptly in the language that he understands and in detail of the nature of the offence; " (b) Be given adequate time and facilities for the preparation of his defence; (c) Defend himself in person or by legal practitioners of his own choice; (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and (e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.? The above provisions of the Constitution reinforce those of Section 215 of the Criminal Procedure Act in order to guarantee the fair hearing and trial of an accused person, See the cases of: (1) Amala V. State supra and (2) Solola V. State supra It is sufficient as a whole if it could be gathered that an accused person understood the nature of the charge preferred against him and that he intended to plead either guilty or not guilty to the charge. See the case of: Adetunji V. State (2001) 13 NWLR (Pt. 730) p. 375"per OMOLEYE, J.C.A(Pp.38-40,Paras.D-E)

8

CRIMINAL LAW AND PROCEDURE - GUIDELINES FOR VALID ARRAIGNMENT: What are the guidelines for a valid arraignment and plea taking?

"For there to be a proper and valid arraignment of an accused person and the taking of his plea in accordance with Section 215 of the Criminal Procedure Act, the following guidelines must be adhered to, that is: (a) The accused person to be tried shall be placed before the trial court unfettered; and (b) the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the trial court by the registrar of the court or other officer or the court; and (c) The accused person shall then be called upon to plead instantly to the charge; and (d) The plea or the accused person shall also be instantly recorded. The above stated requirements of Section 215 or the Criminal Procedure Act are mandatory and not merely directory as they are preceded by the word "shall? Failure to comply with any of the requirements in a criminal trial will render the whole proceedings, that is, trial, conviction and sentence passed on an accused person, a nullity. Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provisions of Section 215 of the Criminal Procedure Act. See the cases of: (1) Eyorokoromo V. State (1979) 6 - 9 SC P 3; (2) Kajubo V. State (1988) 1 NWLR (pt. 75) p. 721; (3) Rufai V. State (2001) 13 NWLR (Pt. 731) p. 718 and (4) Amala V. State (2004) 12 NWLR (pt. 888) p. 520. Section 36 (6) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999 provide as follows: "36. - (6) Every person who is charged with a criminal offence shall be entitled to - (a) Be informed promptly in the language that he understands and in detail of the nature of the offence; " (b) Be given adequate time and facilities for the preparation of his defence; (c) Defend himself in person or by legal practitioners of his own choice; (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and (e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.? The above provisions of the Constitution reinforce those of Section 215 of the Criminal Procedure Act in order to guarantee the fair hearing and trial of an accused person, See the cases of: (1) Amala V. State supra and (2) Solola V. State supra It is sufficient as a whole if it could be gathered that an accused person understood the nature of the charge preferred against him and that he intended to plead either guilty or not guilty to the charge. See the case of: Adetunji V. State (2001) 13 NWLR (Pt. 730) p. 375"per OMOLEYE, J.C.A(Pp.38-40,Paras.D-E)

9

CRIMINAL LAW AND PROCEDURE - ISSUE OF COMPETENCE TO INSTITUTE CRIMINAL ACTION: Whether the lack of competence to institute criminal action can render the entire case to a nullity?

"The issue of competence to institute a criminal action is a vital one and it renders an entire trial a nullity if it is shown that there was no competence to institute an action. On this position of the law, reliance was placed on the cases of: (1) Samuel Chike Onwuka V. The State (1970) ANLR p.164 at p.168: (2) James V. Nigerian Air Force (2000) 13 NWLR (pt. 684) p. 406 at p. 410 and (3) A.P. Anyebe V. The State (1986) 1 SC P. 87 at P.88"per OMOLEYE, J.C.A.(P.19,Paras C-E)

10

CRIMINAL LAW AND PROCEDURE - ISSUE OF COMPETENCE TO INSTITUTE CRIMINAL ACTION: Whether the lack of competence to institute criminal action can render the entire case to a nullity?

"The issue of competence to institute a criminal action is a vital one and it renders an entire trial a nullity if it is shown that there was no competence to institute an action. On this position of the law, reliance was placed on the cases of: (1) Samuel Chike Onwuka V. The State (1970) ANLR p.164 at p.168: (2) James V. Nigerian Air Force (2000) 13 NWLR (pt. 684) p. 406 at p. 410 and (3) A.P. Anyebe V. The State (1986) 1 SC P. 87 at P.88"per OMOLEYE, J.C.A.(P.19,Paras C-E)

11

ADMINISTRATIVE LAW - JUDICIAL/OFFICIAL ACT: Whether it is presumed that judicial and official acts have been done rightly and regularly until the contrary is proved.

"The law is trite that 'where on the face of the record, an official or a judicial act has been carried out in a manner which is substantially regular, the maxim "omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium?, upon which ground there is a presumption of law that judicial and official acts have been done rightly and regularly until the contrary is proved, will apply. This is because by virtue of Section 150(1) of the Evidence Act, when any Judicial or official act is shown to have been done in a manner substantially regular; it is presumed that formal requisites for its validity were complied with."per OMOLEYE, J.C.A.(P.27,Paras D-G)

12

CRIMINAL LAW AND PROCEDURE - PLEA OF GUILTY: What are the requirements of the law before there could be a conviction on a plea of guilty?

The requirements of the law before there could be a conviction on a plea of guilty are that: i.) the court must be satisfied that the accused understands the charge against him, ii.) The court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii.) The court must ask the accused If he admits all the facts alleged by the prosecution; iv.) The court must be satisfied that the accused intends to admit the commission of the offence charged; v.) the facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused"per OMOLEYE, J.C.A(P.34,Paras. A-D)

13

CRIMINAL LAW AND PROCEDURE - PLEA OF GUILTY IN NON-CAPITAL OFFENCE:Whether the court must formally proceed to conviction after an accused plea of guilty in a non-capital offence.

"The law however is that, after a plea of guilty by an accused in non-capital offence cases, the court must formally proceed to the conviction of the accused without calling upon the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. This is because the admission of guilt on the part of the accused would have satisfied the required burden of proof. In the instant case, the Appellant's plea of guilty having been properly taken thereby making his arraignment a valid one, the learned trial Judge was right to proceed to convict and sentence the Appellant as he did. It became an absolutely unnecessary exercise for the trial Court to call for evidence to be adduced in the pursuit of establishing that the Appellant committed the offences with which he was charged. See the cases of: (1) Dangtoe V. C.S.C. Plateau State (2001) 9 NWLR (pt. 717) p.132 and (2) R. V. Wilson (1959) SCNLR p. 462 Having voluntarily pleaded guilty to the charge at trial, the Appellant cannot now be heard to make a different case on appeal. He can not approbate and reprobate both in the same breath, The Appellant did not deny or challenge the allegation against him, rather when the charge was read to him in Hausa Language, he pleaded guilty thereto"per OMOLEYE, J.C.A(P.44-45,paras.D-C)

14

EVIDENCE - STANDARD OF PROOF IN CRIMINAL PROCEEDING: Whether the standard of proof in criminal proceeding is proof beyond reasonable doubt

"It is a cardinal principle of criminal law that in all cases the burden of proving that any person has been guilty of a crime or wrongful act subject to certain exceptions is on the prosecution. If the commission of a crime is directly in Issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. Thus, if at the end of the whole case, there is doubt created by the evidence given by the prosecution and the accused, the accused is entitled to an acquittal. See the cases of: (1) Onafowokan V. State (1987) 3 NWLR (pt. 61) p. 538; (2) Ndike V. State (1994) 8 NWLR (pt. 360) p. 33: (3) Nasiru V. State (1999) 2 NWLR (Pt. 589) p. 87: (4) Audu V. State (2003) 7 NWLR (pt. 820) p. 516 and (5) Shande V. The State (2005) 12 NWLR (pt. 939) p. 301"per OMOLEYE, J.C.A(P.44, Paras. A-D)