ONUWA KALU V THE STATE

BEFORE THEIR LORDSHIPS

OLUKAYODE ARIWOOLA JSC
CLARA BATA OGUNBIYI JSC
CHIMA CENTUS NWEZE (Delivered the lead judgment) JSC
AMIRU SANUSI JSC
PAUL ADAMU GALINJE JSC

THURSDAY 13TH APRIL, 2017

COUNSEL TO THE PARTIES

CHIEF MIKE AHAMBA SAN With him,
James Ubogu Esq., - for the Appellant
M.O. NLEMEDIM THE HON. A.G. IMO STATE With him
C.O.C. Emeka-Izima Esq.) - for the Respondent.

APPEAL

This appeal is against the judgment of the Court of Appeal, which dismissed the appeal of the Appellant and upheld the decision of the High Court of Ogun State convicting the appellant in a case of armed robbery.

ISSUES OF LAW INVOLVED

APPEAL: The power of the Supreme Court to reframe the appellant's issue

FAIR HEARING- When counsel or a party is denied this right of address

PRACTICE AND PROCEDURE- Conditions which must be considered, before retrial order of cases can be made

SUMMARY OF FACTS OF THE CASE

At the Owerri Judicial Division of the High Court of Imo State, the appellant (first accused person, as he then was) and one Martin Egbufor were jointly charged with the offence of Armed Robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria, 2004. The said Court found the accused persons guilty as charged; convicted and sentenced both of them to death by hanging.

Dissatisfied the Appellant appealed to the Court of Appeal and the said appeal was allowed and the case remitted back to the Chief Judge for assignment for fresh trial

Dissatisfied, the Appellant further appealed against the decision of the Court of Appeal to the Supreme Court.

ISSUE FOR DETERMINATION

Whether having regard to all the circumstances of the case, the Court of Appeal was right when in its majority judgment it upheld the appeal of the appellant but ordered his re-retrial instead of discharging and acquitting him?

HELD: (Unanimously allowing the appeal in part)

For the purpose of clarifying and accentuating the real or principal question in controversy the Supreme Court has the undoubted power to prune, reframe or to formulate entirely new issues for consideration that will usually compendiate or sum up the ones submitted by the parties.

PER EKO, JSC [RATIO 1]

POWER OF SUPREME COURT TO REFORM ISSUES FOR DETERMINATION FRAMED BY PARTIES

My Lords, the power of this Court to reframe the appellant's issue (s) for the purpose of accentuating the principal question in controversy in the interest of clarity and brevity has never been in doubt, Musaconi Ltd V. Aspinal (2013) LPELR - 20745 (SC) 6-7; I.T.I. V. Ltd and Anor V. Onyesom Community Bank Ltd (2015) LPELR - 24819 (SC) 20; B-D; Unity Bank Plc. and Anor V. Bouari (2008) LPELR -3411 (SC) 21,-22; A-B; Okoro V. The State (1988) 12 SC 191; 1988 12 SCNJ 191

PER EKO, JSC [RATIO 2]

DUTY OF COURTS TO SAFEGUARD FUNDAMENTAL RIGHTS AND ENSURE FAIR HEARING IN TRIALS

Instructively, this Court in cases too numerous to be cited here, has endeavoured to "give to individuals the full measure of the fundamental rights and freedoms referred to." In particular, its attitude to the fair hearing provisions has been to seek after the highest possible ideal of justice and fairness.

Only a handful of cases will be cited here to illustrate this attitude. Ogboh and Anor V. FRN (2002) LPELR -2285 (SC) 15; A-C; Igboha, Irepa LGC and Anor V. T. B. S. C and Anor (1988) LPELR -1449 (SC) 16; D-E; The State, Ex Parte Joseph Ajidasile Olakunrin and Ors V. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors (1985) 5 SC 161, 193, 233; Akere and Ors V. Gov of Oyo State and Ors (2002) LPELR -7806 (SC) 67; B-D.

Others include; Adesoke V Adibi (1992) 5 NWLR (pt. 242) 410, 420; Odiase V. Agho (1972) 1 All NLR (pt. 1) 170; Ejowhomu V. Edok-Eter Mandilas Ltd 1986 5 NWLR (Pt. 39)1; Oje V. Babalola (1991) 4 NWLR (pt.185) 267, at Abbas and Ors V Mogaji and Ors 2001 11 SC 1, 14; Hart V. Military Governor of Rivers State (1971) 11 SC 211; LPDT V. Fawehinmi (1985) 2 NWLR (Pt. 7) 300, 347; Baba V. N.C.A.T.C. (1991) 5 NWLR (pt.192) 388,

This, unarguably was the context that yielded this Court's opinion in Kim V. State (1992) LPELR -1691 (SC) 11-12; F-E that:

Human rights in our written Constitution mark a standard of behavior which we share with all civilized countries of the word. Since the United Nations Universal Declaration of Human Rights in 1948, though it s still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been breached in a judicial proceeding, it vitiates the proceeding. If therefore, I find that it was breached in this case, I shall have no alternative but to allow the appeal. See- Michael Uda Udo V. The State (1988) 3 NWLR (Pt. 82) 316; Galas Hired V. The King (1944) A.C. 149; Dixon Gokpa V. IGP (1961) All NLR 423; R V. Mary Kingston 32 C. App. R. 183; and Godwin Josiah V. The State (1985) 1 NWLR (pt. 1) (sic). And fair hearing in this respect compendiates not only compliance with the two rules of natural justice - audi alteram partem and nemo judex in Causa sua. It entails complying with all the provisions of that section of the Constitution. It also entails doing, during the course of the trial, all things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides to the trial. Italics supplied for emphasis

From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance. Okanlawon V. State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor V. Mohammed and Anor (2008) 5-6 SC (pt.1) 83; Deduwa V. Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.

Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State V. Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa V. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined, State V. Onagoruwa (supra); anymore, it applies from the beginning to the end of the trial. Oyewole V. Akande and Anor (2009) LPELR- 2879 (SC) 36-37; Deduwa V. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. V. Attah (2006) 12 NWLR (pt 993) 144; A. G Rivers State V. Ude (2006) 17 NWLR (pt 1008) 436.

It is this logic that yielded the reasoning in the decisions of this Court: decisions which are remarkable for their unanimity on the point that it that is, fair hearing imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the forensic conflict. Ndu V. The State 1990 7 NWLR (pt.164) 550, 578; Ekpeto V. Wanogho 2005 All FWLR (pt. 245) 1191, 1203; Amamchukwu V. FRN 2009 All FWLR (pt. 465) 1672, 1679. It therefore does not anticipate a standard of justice which is biased in favour of one party but prejudices the other. Ekpeto V. Wanogho (supra).

PER EKO, JSC [RATIO 3]

ORDER OF RETRIAL WHEN A PARTY'S RIGHT OF FAIR HEARING IS BREACHED

Once there is such a denial of the said right, the only order that could be made on appeal is one for re-trial or rehearing. This is to enable the appellant to be properly heard. Otapo V. Sunmonu (1987) 12 NWLR (pt. 58) 587; Salu V. Egbeibon (1994) 6 NWLR (pt 348) 23; Danladi V. Danladi (2014) LPELR -24020 (SC) 58; C-E

PER EKO, JSC [RATIO 4]

NATURE OF THE RIGHT TO FINAL ADDRESS

Now, it is undeniable that Section 294 (1) of the Constitution of the Federal Republic of Nigeria consecrates the right to final addresses. Sodipo V. Lemminkainen Oy 1985 2 NWLR (pt 8) 547; Mustapha V. Governor of Lagos State (1987) 2 NWLR (pt 58) 539; Ijebu Ode V. Balogun and Company Ltd. (1991) LPELR - 1463 (SC) 31-32; F-A; Okeke V. State (2003) LPELR - 2436 (SC) 19-20; F-A.

The said expression "final addresses" means the last or ultimate speech or submission made to the Court in respect of the matter before it, before the delivery of the judgment. Put simply, it is the last address before the delivery of the judgment. Sodipo V. Leminkainen Oy (supra); Mustapha V. Governor of Lagos State (supra); Ijebu Ode V. Balogun and Company Ltd (supra); Okeke V. State (supra). It final address is the penultimate part of the three most important portions of the trial period; the first, being the hearing of the evidence; while the last is the judgment, Okeke V. State (2003) LPELR -2436 (SC) 19 -20; F-A.

Such is its pedestal in the administration of justice that when counsel or a party is denied this right that is, of address, the trial Court is equally deprived of its enormous benefits. Its inevitable consequence is that a miscarriage of justice has been occasioned. Okafor and Ors V. A.G., Anambra and Ors (1991) LPELR-2414 (SC) 28; A-C; Obodo V. Olomu (1987) 3 NWLR (Pt. 59) 111; Adigun V. A-G of Oyo State (supra). This explains why a party must have the same right as given to his adversary to offer, by his counsel, the final address on the law in support of his case. Ndukauba V. Kolomo and Anor (2005) LPELR -1976 (SC) 12; A-D.

PER EKO, JSC [RATIO 5]

TEST FOR MEASURING FAIRNESS OF PROCEEDINGS

After all, the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. Otapo V. Sunmonu and Ors 1987 NWLR (Pt. 58) 587; Obaro V. Hassan (2013) LPELR- 20089 (SC) 32-33; E-B; Tunbi V. Opawole 2000 2 NWLR (pt 644) 275.

In this case, the question is: since, according to the lower Court, "the trial Court shut out the appellant from fully entering his defence," what must have been the impression of the reasonable person who was present at the trial? Could such a reasonable person have left that Court with the impression that the said hearing in an armed robbery case qualified as fair hearing? Olumesan V. Ogundepo (1996) 2 NWLR (pt. 433) 628; Otapo V. Sunmonu (supra); Gukas V. Jos Int. Breweries Ltd (1991) 6 NWLR (pt. 199) 614; Ndukauba V. Kolomo and Anor (supra).

PER EKO, JSC [RATIO 5a]

EMPLOYING THE "REASONABLE MAN TEST" IN DETERMINING FAIR HEARING IN A CRIMINAL TRIAL

The test of determining whether there was a fair hearing in criminal cases is always the impression of a reasonable man listening and present in Court. In the instant case, where the appellant's reply on points of law was excluded, no reasonable man present in Court would admit that he was given a fair hearing. What then is the effect of lack of fair hearing on the decision of the trial Court. It is very clear that where an accused person is convicted in absence of fair trial, the conviction and sentence are defective, null and void and should be so declared on appeal. The trial will be as though nothing has taken place. See Yusuf V. State (2011) 18 NWLR (Pt. 1279) 853 at 870; Effiom V. State (1995) 1 NWLR (pt 373) 507; Madu V. State (1997) 1 NWLR (Pt. 482) 386.

PER EKO, JSC [RATIO 6]

NATURE & FUNCTION OF A REPLY BRIEF

As settled on the authorities, the function of a reply brief is to refute the new arguments in the respondent's brief, that is, a reply brief is usually filed in response to new issues raised in the respondent's brief. Sakati V. Bako and Anor (2015) LPELR -24739 (SC) 25, Godsgift V. State (supra); Unity Bank Plc V. Bouari (2008) LPELR -3411 (SC) 29 -30; B-C; Cameroon Airlines V. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A; Longe V. FBN Plc 2010 2-3 SC 61; Mozie and Ors V. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.*

Although it is not mandatory for an appellant to file a reply brief. However, where a respondent's brief raises a point of law not covered in his (appellant's) brief, he (appellant) ought to file a reply (brief). Indeed, where he fails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent's brief, he may be deemed to have conceded to the points of law or issues so raised in the respondent's brief.

The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift V. State (supra); Longe V. FBN Plc (Supra); Harka Air Services (Nig) Ltd V. Keazor (2011) 6-7 (Pt. II) 1; Dairo V. Union Banks (2007) 7 SCNJ 13; Mini Lodge Ltd V. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F; A.C.B V. Apugo (1995) 6 NWLR (Pt. 399) 65; E.I.I.A V. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119: Popoola V. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Akinrinmade V. Lawal 1996 2 NWLR (pt. 429) 218; Musaconi Ltd V. Aspinall (2013) LPELR-20745 (SC) 21-22

PER EKO, JSC [RATIO 7]

DUTY OF COURT TO CONDUCT PROCEEDINGS WITH FAIRNSESS

From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance.Okanlawon V. State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor V. Mohammed and Anor (2008) 5-6 SC (pt. 1) 83; Deduwa V. Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.

Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State V. Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa V. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined, State V. Onagoruwa (supra); anymore, it applies from the beginning to the end of the trial. Oyewole V. Akande and Anor (2009) LPELR- 2879 (SC) 36-37; Deduwa V. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. V. Attah (2006) 12 NWLR (pt. 993) 144; A. G Rivers State V. Ude (2006) 17 NWLR (pt. 1008) 436.

It is this logic that yielded the reasoning in the decisions of this Court: decisions which are remarkable for their unanimity on the point that it that is, fair hearing imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the forensic conflict. Ndu V. The State 1990 7 NWLR (pt. 164) 550, 578; Ekpeto V. Wanogho 2005 All FWLR (pt 245) 1191, 1203; Amamchukwu V. FRN 2009 All FWLR (pt 465) 1672, 1679. It therefore does not anticipate a standard of justice which is biased in favour of one party but prejudices the other. Ekpeto V. Wanogho (supra).

Above all, it is not a technical doctrine, but one of substance, Ogundoyin V. Adeyemi 2001 33 WRN 1, 14 -15; Kotoye V. C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on a party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. J.C.C. Inter Ltd. V. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu V. FRN (2009) LPELR -455 (SC) 11-12.

It is thus outrageous to deny a party an opportunity of hearing, Onyeneh V. Egbuchula (1996) 5 NWLR (pt. 448) 255, 265, Gyang and Anor V. COP, Lagos State and Ors (2013) LPELR -21893 (SC) 12- 13; A.R V. Electricity Joint Commission (1968) NMLR 102; Adeyemi V. A.G. Federation 1984 1 SCNLR 525.

PER EKO, JSC [RATIO 8]

CONDITIONS TO BE CONSIDERED BEFORE AN ORDER OF RETRIAL IS MADE

The Supreme Court has in multiplicity of its decided authorities laid down some conditions which must be considered, before retrial order of cases can be made.These conditions though by no means exhaustive, includes the followings:

(a) That there had been such an error in law or an irregularity in procedure which renders the trial a nullity nor makes it possible for that appeal Court to say that there has been no miscarriage of justice.

(b) That besides the error or flaw or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused Person.

(c) That there are no special or exceptional circumstances which would make it unjust to put the accused on trial a second time.

(d) The offences on which the accused faced trial have very serious consequences;

(e) That the refusal to order retrial would occasion greater injustice than to grant or order such retrial order.

See the cases of Abodundu V. Queen (1959) 4 FOSC 70; Mr. David Odetayo V. Mr. Michael Bamidele (2007) 5 SC 72; Cypiacus Nnadozie & Ors V. Nze Ogbunelu Mbagwu 2008 1 SC (pt. II) 43; Edibo V. The State (2007) All FWLR (pt. 384)192 at 229

PER EKO, JSC [RATIO 8a]

CONDITIONS TO BE CONSIDERED BEFORE AN ORDER OF RETRIAL IS MADE

Now the lower Court, by its decision ordered a retrial of this case, and that is the order that prompted this appeal was the lower Court in its decision to subject the Appellant to another trial. In Abodundu & Ors V. The Queen (1959) 1 NSCC 56 at 60 (1959) SCNLR 162; Abbott F. J Stated the conditions under which a retrial can be ordered as follows:

We are of the opinion that before deciding to order a retrial, this Court must be satisfied:

(a) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice and to invoke the proviso to Section 11(1) of the Ordinance;

(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the applicant.

(c) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.

(d) That the offence of which the appellant was convicted or the consequence to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and

(e) That to refuse an order for a retrial would occasion a miscarriage of justice than to grant it." See Yusuf V. The State (supra).

In addition to the above conditions for a retrial order, the overriding principle guiding the appellate Court to order retrial or not must be borne out of the justice of the case. In the instant case where the evidence against the appellant is overwhelming and considering the nature of the offence with which he is charged, the demands of justice is not for the Appellant to be discharged on mere technicalities as doing so would amount to discharging and acquitting an accused person who, in the eyes of the law, has not been tried of the heinous crime of armed robbery punishable with death. It is therefore my firm view that a retrial in the instant case would not amount to going through a second trial, but rather to ensure that the right thing is done. In other words, to refuse an order to retrial as urged by Chief Mike Ahamba, learned senior counsel for the Appellant, will occasion a greater miscarriage of justice than to grant it. See Okoduwa V. State (1988) 2 NWLR (Pt. 76) 333, Edibo V. State (2007) 13 NWLR (Pt. 1051) 306; Kajubo V. State (1988) 1 NWLR (Pt. 73) 721; Dike V. State (1996) 5 NWLR (Pt.450) 553; Umuolo V. State (2003) 3 NWLR (Pt.803) 493; Josiah V. State (1985) 1 NWLR (Pt. 1) 125.

PER EKO, JSC [RATIO 9]

BREACH OF FAIR HEARING DOES NOT EARN AN ACCUSED A DISCHARGE AND ACQUITTAL

My Lords, that is not the end of the matter. Learned senior counsel for the appellant agreed that the trial, having been conducted in breach of the appellant's right to fair hearing was a nullity. Somewhat, most curiously, he entertained the hope that a positive order of the trial Court should have eventuated from the said null proceedings.

Citing Edibo V. The State (2007) 13 NWLR (Pt. 1051) 306, 327, he strenuously urged the Court to "substitute the order of re-trial made by the lower Court with an order discharging and acquitting the appellant." Paragraphs 4.11-4.20; pages 8-13 of the brief.

With respect, this submission is clearly preposterous. That is why I classified the reasoning process that yielded it that is, the submission as exemplifying the fallacy of non-sequitur. As shown above, learned senior counsel endorsed the lower Court's position that the approach of the trial Court vitiated its entire proceedings and effectively rendered them void and of no effect. Pray by what sketch of logic could such void proceedings yield a positive order of the acquittal and discharge of the appellant at the same time?

In ordinary parlance, the word "acquittal" from the Latin word verbum equivocum, may be used to express either the verdict of the jury where jury trials obtain or the judgment of a Court. Nafiu Rabiu V. Kano State (1980) LPELR -2936 (SC), citing J. B. Saunders, Words and phrases Legally Defined (Second edition); 102 -103; D-A. In effect, it is a term employed to describe a Court order which sets an accused person free from the charge of an offence, Chief of Army Staff and Ors V. Iyen (2005) LPELR -3165 (SC) 37; D- F, However, it must be emphasized that an acquittal of an accused person in a verdict can only be returned on the consideration of the case on the merits, Nigerian Air Force V. Kamaldeen (2007) 2 SC 131.

Chief Ahamba, SAN, on the one hand, endorsed the lower Court's finding that the trial Court's violation of the appellant's right to fair hearing vitiated its that is, trial Court's entire proceedings and effectively rendered them void and of no effect. On the other hand, he nevertheless argued most strenuously that the Court's order for the appellant's re-trial was inappropriate. In his submission, he the appellant ought to have been favoured with an order for his acquittal.

LIST OF STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Protection of human Rights Under The Law (London: Butterworths, 1964) 182

Robbery and Firearms (Special Provisions) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria, 2004.

LIST OF CASES CITED.

A. G Rivers State V. Ude (2006) 17 NWLR (pt 1008) 436.

A.C.B V. Apugo (1995) 6 NWLR (Pt. 399) 65

A.G, Rivers State V. Ude and Ors (2006) LPELR -626 (SC) 19; B-D.

A.R V. Electricity Joint Commission (1968) NMLR 102

Abbas and Ors V Mogaji and Ors 2001 11 SC 1, 14

Abodundu & Ors V. The Queen (1959) 1 NSCC 56 at 60 (1959) SCNLR 162

Abodundu V. Queen (1959) 4 FOSC 70

Adanu V. Akukaha (2008) All FWLR (pt 428) 352, 455

Adebayo V. The Republic (1962) NWLR 391

Adesoke V Adibi (1992) 5 NWLR (pt. 242) 410, 420

Adeyemi V. A.G. Federation 1984 1 SCNLR 525.

Akere and Ors V. Gov of Oyo State and Ors (2002) LPELR -7806 (SC) 67; B-D.

Akinrinmade V. Lawal 1996 2 NWLR (pt 429) 218

Akpabio V. The State (1994) 7 NWLR (Pt. 359) 653

Amamchukwu V. FRN (2009) LPELR -455 (SC) 11-12.

Amamchukwu V. FRN 2009 All FWLR (pt 465) 1672, 1679.

Attah V. The State (2010) 10 NWLR (Pt. 1201) 190 at 221 Paragraph G-H

Baba V. N.C.A.T.C. (1991) 5 NWLR (pt.192) 388, 414

Bamgboye V. UNILORIN (1999) 6 SCNJ 295.

Bernard Okoebor V. Police Council (2003) 5 SCNJ 52.

Cameroon Airlines V. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A

Cypiacus Nnadozie & Ors V. Nze Ogbunelu Mbagwu 2008 1 SC (pt.II) 43

Dairo V. Union Banks (2007) 7 SCNJ 13

Danladi V. Danladi (2014) LPELR -24020 (SC) 58; C-E.

Deduwa V. Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.

Dike V. State (1996) 5 NWLR (Pt. 450) 553

Dixon Gokpa V. IGP (1961) All NLR 423

E.I.I.A V. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119

Edibo V. State (2007) 13 NWLR (Pt. 1051) 306

Edibo V. The State (2007) 13 NWLR (Pt. 1051) 306, 327

Effiom V. State (1995) 1 NWLR (Pt. 373) 507

Ejowhomu V. Edok-Eter Mandilas Ltd 1986 5 NWLR (Pt. 39)1

Ekpeto V. Wanogho 2005 All FWLR (Pt. 245) 1191, 1203

FRN V. Akubueze 2010 17 NWLR (pt 1223) 525.

Gaamstac Eng. Ltd and Anor V. FCDA (1988) 4 NWLR (pt 88) 296, 305-306.

Galas Hired V. The King (1944) A.C. 149

Godsgift V. State (2006) LPELR-40540 (SC) 32-33

Godwin Josiah V. The State (1985) 1 NWLR (pt 1)

Gukas V. Jos Int. Breweries Ltd (1991) 6 NWLR (pt. 199) 614

Gyang and Anor V. COP, Lagos State and Ors (2013) LPELR -21893 (SC) 12- 13

Harka Air Services (Nig) Ltd V. Keazor (2011) 6-7 (Pt. II) 1

Hart V. Military Governor of Rivers State (1971) 11 SC 211

I.T.I. V. Ltd and Anor V. Onyesom Community Bank Ltd (2015) LPELR - 24819 (SC) 20; B-D

Igboha, Irepa LGC and Anor V. T. B. S. C and Anor (1988) LPELR -1449 (SC) 16

Ijebu Ode V. Balogun and Company Ltd. (1991) LPELR - 1463 (SC) 31-32; F-A

INEC V. ADC 2009 A FWLR (pt 490) 668

J.C.C. Inter Ltd. V. N.G.I. Ltd. (2002) 4 WRN 91, 104

Josiah V. State (1985) 1 NWLR (Pt. 1) 125.

Kajubo V. State (1988) 1 NWLR (Pt. 73) 721

Karibo V. Grend (1992) 3 NWLR (pt 230) 426.

Kim V. State (1992) LPELR -1691 (SC) 11-12; F-E

Kotoye V. C.B.N (1989) 1 NWLR (Pt. 89) 418, 448.

Longe V. FBN Plc 2010 2-3 SC 61

LPDT V. Fawehinmi (1985) 2 NWLR (Pt. 7) 300, 347

Madu V. State (1997) 1 NWLR (Pt. 482) 386.

Malam Zakari Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at 679 and 681.

Michael Uda Udo V. The State (1988) 3 NWLR (Pt. 82) 316

Mini Lodge Ltd V. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F

Minister of Home Affairs V. Fisher (1980) AC 319,329

Mozie and Ors V. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.

Mr. David Odetayo v Mr. Michael Bamidele (2007) 5 SC 72

Musaconi Ltd V. Aspinal (2013) LPELR - 20745 (SC) 6-7

Musaconi Ltd V. Aspinall (2013) LPELR-20745 (SC) 21-22.

Mustapha V. Governor of Lagos State (1987) 2 NWLR (pt 58) 539

Ndu V. The State 1990 7 NWLR (pt. 164) 550, 578

Ndukauba V. Kolomo and Anor (2005) LPELR -1976 (SC) 12; A-D.

News Watch Comm. Ltd. V. Attah (2006) 12 NWLR (pt 993) 144

Nnorodin V. Ezeam (2001) FWLR (pt. 40) 1701

Nwankwoala V. The State (2006) 14 NWLR (Pt 1000) 663

Obaro V. Hassan (2013) LPELR- 20089 (SC) 32-33; E-B

Obodo V. Olomu (1987) 3 NWLR (Pt. 59) 111

Odiase v Agho (1972) 1 All NLR (pt. 1) 170

Ogboh and Anor V. FRN (2002) LPELR -2285 (SC) 15; A-C

Ogundoyin V. Adeyemi 2001 33 WRN 1, 14 -15

Oguntolu V. The State (1996) 2 NWLR (Pt. 432) 503

Oje V. Babalola (1991) 4 NWLR (pt.185) 267, at

Okafor and Ors V. A.G., Anambra and Ors (1991) LPELR-2414 (SC) 28; A-C

Okanlawon V. State (2015) LPELR-24838 (SC) 52-53; E-B

Okeke V. State (2003) LPELR - 2436 (SC) 19-20; F-A.

Okoduwa V. State (1988) 2 NWLR (Pt. 76) 333

Okoro V. The State 1988 12 SC 191; 1988 12 SCNJ 191.

Olumesan V. Ogundepo (1996) 2 NWLR (pt. 433) 628

Omojasola V. Plison Fiska Nig. Ltd and Ors (1990) 5 NWLR (Pt 151) 434, 441.

Onifade V. Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160:

Onyeneh V. Egbuchula (1996) 5 NWLR (pt. 448) 255, 265

Otapo V. Sunmonu 1987 12 NWLR (pt 58) 587

Otapo V. Sunmonu and Ors 1987 NWLR (Pt. 58) 587

Oyewole V. Akande and Anor (2009) LPELR- 2879 (SC) 36-37

Peters Pam and Anor V. Mohammed and Anor (2008) 5-6 SC (pt.1) 83

Popoola V. Adeyemo (1992) 8 NWLR (Pt. 257) 1

R v. Mary Kingston 32 C. App. R. 183

Sakati V. Bako and Anor (2015) LPELR -24739 (SC) 25

Salu V. Egbeibon (1994) 6 NWLR (Pt. 348) 23

Sodipo V. Lemminkainen Oy 1985 2 NWLR (pt 8) 547

State V. Onagoruwa (1992) LPELR -3228 (SC) 33; D-E

The State, Ex Parte Joseph Ajidasile Olakunrin and Ors V. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors 1985 5 SC 161, 193, 233

Tunbi V. Opawole 2000 2 NWLR (Pt 644) 275.

Umuolo V. State (2003) 3 NWLR (Pt. 803) 493

Unity Bank Plc V. Bouari (2008) LPELR -3411 (SC) 29 -30; B-C

Unity Bank Plc. and Anor V. Bouari (2008) LPELR -3411 (SC) 21,-22; A-B

Yusuf V. State (2011) 18 NWLR (Pt. 1279) 853 at 870

JUDGMENT

CHIMA CENTUS NWEZE, JSC: (Delivering the Leading Judgment)

Having pleaded not guilty to the charge, trial commenced with the Prosecution calling three witnesses in proof of their case. On his part, the appellant (as first accused pers on), not only testified in protestation of his innocence, he also called two witnesses.

My Lords, for reasons that would be evident anon, there is seldom any need for further voluble comments on the proceedings at the said Court (hereinafter, simply, referred to as "the trial Court"). Having regard to the appellant's principal complaint (as embodied in his Notice and Grounds of Appeal), the only aspect of the trial that is relevant for the purposes of this appeal is what transpired thereat at the end of the oral testimonies.

The grouse of the appellant is that, though counsel had filed and exchanged their briefs - including a Reply brief, a Reply brief which was, nonetheless, never adopted in answer to the points of law raised in the respondent's brief - the learned trial Judge proceeded to deliver his judgment. His Lordship, in effect, without allowing the appellant's counsel to adopt the said reply brief, proceeded to write down His judgment. He found the accused persons guilty as charged; convicted and sentenced both of them to death by hanging.

By a plural decision, the Court of Appeal (hereinafter, simply, referred to as "the lower Court") allowed the appeal to it. It ordered the case to be remitted to the Chief Judge of Imo State for re-assignment to another Court. Aggrieved by the majority decision of the lower Court, the appellant has approached this Court.

1 My Lords, the power of this Court to reframe the appellant's issue (s) for the purpose of accentuating the principal question in controversy in the interest of clarity and brevity has never been in doubt, Musaconi Ltd V. Aspinal (2013) LPELR - 20745 (SC) 6-7; I.T.I. V. Ltd and Anor V. Onyesom Community Bank Ltd (2015) LPELR - 24819 (SC) 20; B-D; Unity Bank Plc. and Anor V. Bouari (2008) LPELR -3411 (SC) 21,-22; A-B; Okoro V. The State 1988 12 SC 191; 1988 12 SCNJ 191.

The appellant formulated four issues for the determination of the rather narrow question in this appeal, Paragraph 3.0; pages 6- 7, of the brief. However, I have taken liberty of this Court's said prerogative to prune them into just one issue. The aim is to narrow down the principal question in controversy having regard to his main complaint against the majority judgment of the lower Court as encapsulated in the Notice and Grounds of Appeal.

For this purpose, I take the view that only the first issue is actually determinative of this appeal. Okoro V. The State (supra); Unity Bank Plc and Anor V. Bouari (supra); Musaconi Ltd V. Aspinall (supra); I.T.I.V. Ltd and Anor V. Onyesom Community Bank Ltd (supra). Indeed, Chief Ahamba, SAN, urged the Court to consider issues one; three and four together.

The said first issue was couched thus:

Whether having regard to all the circumstances of the case, the Court of Appeal was right when in its majority judgment it upheld the appeal of the appellant but ordered his re-retrial instead of discharging and acquitting him?

At the hearing of this appeal on January 26, 2017, Chief Mike Ahamba, Learned Senior Advocate of Nigeria, who appeared with James Ubogu for the appellant adopted the appellant's brief which was filed on December 19, 2012, although, deemed properly filed on May 22, 2013. He equally adopted the reply brief filed on October 19, 2016 but deemed properly filed on January 26, 2017.

It was the contention of the learned senior counsel that, having regard to all the circumstances of the case, the majority judgment of the lower Court was wrong when it upheld the appeal but ordered a retrial. In his view, the appellant ought to have been acquitted of the said charge of armed robbery.

He cited the findings of the plural decision of the lower Court at page 291 lines 1-61 of the record. He then contended that the right to fair hearing is not just a common law right but also a constitutional right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).Bamgboye V. UNILORIN (1999) 6 SCNJ 295.

He opined that the address of counsel is an essential part of a party's case. As such, it is the duty of the Court to afford parties the opportunity of addressing it by way of the elucidation of the essential issues in favour of their case. Bernard Okoebor V. Police Council (2003) 5 SCNJ 52.

The lower Court's finding he pointed out was that the trial Court violated the appellant's right to fair hearing. This was predicated on the trial Court's disapproval of counsel's right to file his reply to the points which the prosecution's counsel had canvassed. In his submission, the lower Court ought to have acquitted and discharged the appellant instead of entering an order for his re-trial, citing Nnorodin V. Ezeam (2001) FWLR (pt. 40) 1701; Karibo V. Grend (1992) 3 NWLR (pt. 230) 426.

He called attention to this Court's attitude to proceedings conducted in breach of the right to fair hearing in Section 36 (supra), INEC V. ADC 2009 A FWLR (pt. 490) 668; Adanu V. Akukaha (2008) All FWLR (pt. 428) 352, 455; Edibo V. State (2007) All FWLR (pt 384) 192, 229. In particular, he relied on Edibo V. State (supra) as authority for the proposition that an order for the discharge of the appellant was more appropriate rather than the lower Court's order for his re-trial, Paragraph 4.15-4.16 (a)-(e); 4.77 -4.20, pages 9- 13 of the brief; Paragraphs 1.01-1.07 pages 1- 3 of the reply brief.

On his part, M. O. Nlemedim, the Honourable Attorney General and Commissioner for Justice, Imo State, who appeared with C. O. C. Emeka-Izima, for the respondent adopted the brief filed on March 5, 2013 in urging the Court to dismiss the appeal.

He drew attention to the pronouncement of the majority decision of the lower Court at page 129, lines 1- 6, of the record. His reading of the said pronouncement was that the lower Court made a finite finding namely that the trial Court's error was its failure to allow the appellant's counsel to ".. amplify or his written address..." before delivering its judgment.

He contended that the lower Court never made any finding that the appellant's counsel was prevented from addressing the trial Court. He urged the Court to discountenance the submissions of the appellant's counsel on this issue, citing FRN V. Akubueze 2010 17 NWLR (pt. 1223) 525.

RESOLUTION OF THE SOLE ISSUE

My Lords, from the main agitation of the appellant in his Notice and Grounds of Appeal, the principal question for the determination of this appeal actually falls within a very narrow compass. In point of fact, the appellant's grouse against the said majority judgment, as evident in the above-cited sole issue, eventuated from its main findings at page 291 of the record. Hear the views of the majority (per Owoade, JCA):

Having excluded the appellant's counsel from a right of reply on points of law by the Court order of 4/2/2006, having fixed a date for delivering of judgment without any date for adoption of written addresses by the parties and having deprived the appellant through his counsel the opportunity to amplify on his written address, the trial Court shut out the appellant from fully entering his defence. The appellant was not heard. It is therefore clear that the appellant was denied fair hearing. (Italics supplied)

As shown above, learned senior counsel for the appellant was enamoured of the lower Court's finding that the appellant was denied a fair hearing. (Interestingly, the appellant's four issues are woven around the same principal question of the breach of his right to fair hearing). Contrariwise, he is piqued by the consequential order that the result of the violation of the right to fair hearing should be a nullification of the entire proceedings.

With respect, this submission exemplifies the reasoning process which is classified as the fallacy of non-sequitur in the philosophical genre known as Logic and Clear Thought. Let me explain.

From the enchanting array of the decisions of this Court on the point, the trenchant provisions on the right to fair hearing - a right which is ordained in Section 36 (1) of the Constitution (supra) are far-reaching and ubiquitous indeed. I will return to this latter in this judgment. Before then, I intend to emphasize the special character of this right; a right which is known to most, if not, all legal systems.

The right to fair hearing in Section 36 (1) (supra), and indeed all the other fundamental rights, guaranteed in Chapter IV of the 1999 Constitution (supra) were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms which in turn, was influenced by the United Nations' Universal Declaration of Human Rights of 1948, see, per Lord Wilberforce in Minister of Home Affairs V. Fisher (1980) AC 319,329; also, Chima Centus Nweze, "The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies," in Chima Centus Nweze et al (eds.), Beyond Bar Advocacy (Umuahia, Nigeria: Impact Global Publishers Ltd, 2011) 394 G. Ezejiofor, Protection of human Rights Under The Law (London: Butterworths, 1964) 182.

This background to these guaranteed rights was the proximate impulsion to the formidable prescription that their provisions should not be subjected to "the austerity of tabulated legalism." On the contrary, they their provisions ..call for a generous interpretation .. suitable to give to individuals the full measure of the fundamental rights and freedoms referred to" Minister of Home Affairs V. Fisher (supra)

2 Instructively, this Court in cases too numerous to be cited here, has endeavoured to "give to individuals the full measure of the fundamental rights and freedoms referred to." In particular, its attitude to the fair hearing provisions has been to seek after the highest possible ideal of justice and fairness.

Only a handful of cases will be cited here to illustrate this attitude. Ogboh and Anor V. FRN (2002) LPELR -2285 (SC) 15; A-C; Igboha, Irepa LGC and Anor V. T. B. S. C and Anor (1988) LPELR -1449 (SC) 16; D-E; The State, Ex Parte Joseph Ajidasile Olakunrin and Ors V. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and 6 Ors 1985 5 SC 161, 193, 233; Akere and Ors V. Gov of Oyo State and Ors (2002) LPELR -7806 (SC) 67; B-D.

Others include; Adesoke V Adibi (1992) 5 NWLR (pt. 242) 410, 420; Odiase V Agho (1972) 1 All NLR (pt. 1) 170; Ejowhomu V. Edok-Eter Mandilas Ltd 1986 5 NWLR (Pt. 39)1; Oje V. Babalola (1991) 4 NWLR (pt.185) 267, at Abbas and Ors V Mogaji and Ors 2001 11 SC 1, 14; Hart V. Military Governor of Rivers State (1971) 11 SC 211; LPDT V. Fawehinmi (1985) 2 NWLR (Pt. 7) 300, 347; Baba V. N.C.A.T.C. (1991) 5 NWLR (pt.192) 388, 414 and so on.

This, unarguably was the context that yielded this Court's opinion in Kim V. State (1992) LPELR -1691 (SC) 11-12; F-E that:

Human rights in our written Constitution mark a standard of behavior which we share with all civilized countries of the word. Since the United Nations Universal Declaration of Human Rights in 1948, though it s still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been breached in a judicial proceeding, it vitiates the proceeding. If therefore, I find that it was breached in this case, I shall have no alternative but to allow the appeal. See- Michael Uda Udo V. The State (1988) 3 NWLR (Pt. 82) 316; Galas Hired V. The King (1944) A.C. 149; Dixon Gokpa V. IGP (1961) All NLR 423; R V. Mary Kingston 32 C. App. R. 183; and Godwin Josiah V. The State (1985) 1 NWLR (pt 1) (sic). And fair hearing in this respect compendiates not only compliance with the two rules of natural justice - audi alteram partem and nemo judex in Causa sua. It entails complying with all the provisions of that section of the Constitution. It also entails doing, during the course of the trial, all things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fair to both sides to the trial. Italics supplied for emphasis

7 From its tenor, therefore, the Court is required to conduct the trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of, or against either party. That is the rationale for the prescription that a complaint of breach of fair hearing is usually against the Court or Tribunal, whether the parties before the Court were afforded equal opportunity to fully ventilate their grievance. Okanlawon V. State (2015) LPELR-24838 (SC) 52-53; E-B; Peters Pam and Anor V. Mohammed and Anor (2008) 5-6 SC (pt.1) 83; Deduwa V. Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.

Such is its primacy in our administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. State V. Onagoruwa (1992) LPELR -3228 (SC) 33; D-E; Deduwa V. Okorodudu (supra). This test of fair hearing applies once a trial has commenced, after issue has been joined, State V. Onagoruwa (supra); anymore, it applies from the beginning to the end of the trial. Oyewole V. Akande and Anor (2009) LPELR- 2879 (SC) 36-37; Deduwa V. Okorodudu (1976) 9 -10 SC 329; News Watch Comm. Ltd. V. Attah (2006) 12 NWLR (pt. 993) 144; A. G Rivers State V. Ude (2006) 17 NWLR (pt. 1008) 436.

It is this logic that yielded the reasoning in the decisions of this Court: decisions which are remarkable for their unanimity on the point that it that is, fair hearing imposes an ambidextrous standard of justice in which the Court must be fair to both sides of the forensic conflict. Ndu V. The State 1990 7 NWLR (pt.164) 550, 578; Ekpeto V. Wanogho 2005 All FWLR (pt 245) 1191, 1203; Amamchukwu V. FRN 2009 All FWLR (pt. 465) 1672, 1679. It therefore does not anticipate a standard of justice which is biased in favour of one party but prejudices the other. Ekpeto V. Wanogho (supra).

Above all, it is not a technical doctrine, but one of substance, Ogundoyin V. Adeyemi 2001 33 WRN 1, 14 -15; Kotoye V. C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on a party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties entitled to be heard. J.C.C. Inter Ltd. V. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu V. FRN (2009) LPELR -455 (SC) 11-12.

It is thus outrageous to deny a party an opportunity of hearing, Onyeneh V. Egbuchula (1996) 5 NWLR (pt. 448) 255, 265, Gyang and Anor V. COP, Lagos State and Ors (2013) LPELR -21893 (SC) 12- 13; A.R V. Electricity Joint Commission (1968) NMLR 102; Adeyemi V. A.G. Federation 1984 1 SCNLR 525.

3 Once there is such a denial of the said right, the only order that could be made on appeal is one for re-trial or rehearing. This is to enable the appellant to be properly heard. Otapo V. Sunmonu 1987 12 NWLR (pt 58) 587; Salu V. Egbeibon (1994) 6 NWLR (pt. 348) 23; Danladi V. Danladi (2014) LPELR -24020 (SC) 58; C-E.

STATUS OF FINAL ADDRESSES IN THE CONTEXT OF FAIR HEARING

As shown above, the principal complaint in this sole issue was that the lower Court found that the trial Court did not allow the appellant's counsel to file a reply to address the points of law which the Prosecution raised. In that finding of the lower Court, this resulted in the breach of the appellant's right to fair hearing. In consequence of that breach, it nullified the proceedings of the trial Court and ordered a re-trial of the armed robbery charge. The appellant's counsel fulminated against this order of re-trial! In his submission, the appellant should have been acquitted and discharged.

4 Now, it is undeniable that Section 294 (1) of the Constitution of the Federal Republic of Nigeria consecrates the right to final addresses. Sodipo V. Lemminkainen Oy 1985 2 NWLR (pt. 8) 547; Mustapha V. Governor of Lagos State (1987) 2 NWLR (pt. 58) 539; Ijebu Ode V. Balogun and Company Ltd. (1991) LPELR - 1463 (SC) 31-32; F-A; Okeke V. State (2003) LPELR - 2436 (SC) 19-20; F-A.

The said expression "final addresses" means the last or ultimate speech or submission made to the Court in respect of the matter before it, before the delivery of the judgment. Put simply, it is the last address before the delivery of the judgment. Sodipo V. Leminkainen Oy (supra); Mustapha V. Governor of Lagos State (supra); Ijebu Ode V. Balogun and Company Ltd (supra); Okeke V. State (supra). It final address is the penultimate part of the three most important portions of the trial period; the first, being the hearing of the evidence; while the last is the judgment, Okeke V. State (2003) LPELR -2436 (SC) 19 -20; F-A.

Such is its pedestal in the administration of justice that when counsel or a party is denied this right that is, of address, the trial Court is equally deprived of its enormous benefits. Its inevitable consequence is that a miscarriage of justice has been occasioned. Okafor and Ors V. A.G., Anambra and Ors (1991) LPELR-2414 (SC) 28; A-C; Obodo V. Olomu (1987) 3 NWLR (Pt. 59) 111; Adigun V. A-G of Oyo State (supra). This explains why a party must have the same right as given to his adversary to offer, by his counsel, the final address on the law in support of his case.Ndukauba V. Kolomo and Anor (2005) LPELR -1976 (SC) 12; A-D

It would thus seem obvious that the draftsperson of this section Section 294 had in mind the eloquent views of a distinguished American Jurist, Dillon, who observed in his Laws and Jurisprudence of England and America that;

I feel reasonably assured of my judgment where I have heard counsel, and a very diminished faith where the case has not been orally argued, for mistakes, errors, fallacies and flaws elude us in Spite of ourselves unless the case is pounded and hammered at the Bar...

Italics supplied for emphasis

Now, prior to the evolution of brief writing in various Rules of our Courts, counsel actually "pounded and hammered their arguments at the Bar." In place of that practice which has now fallen into desuetude, one of the new features introduced by these rules is the concept of advocacy in writing, that is, brief writing, whose main purpose is to curtail the time that should have been wasted in lengthy oral arguments. Onifade V. Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160: oral arguments in which verbose counsel beat out the bush, Omojasola V. Plison Fiska Nig. Ltd and Ors (1990) 5 NWLR (Pt 151) 434, 441.

Thus, although oratorical prowess was previously a great asset in advocacy due to the great changes which have been wrought in the Court rules, proficiency in the presentation of briefs has taken the place of brilliancy in oral advocacy. Gaamstac Eng. Ltd and Anor V. FCDA (1988) 4 NWLR (pt. 88) 296, 305-306.

Broadly speaking, these briefs fall into three categories: the appellant's brief; respondent's brief and reply brief, Godsgift V. State (2006) LPELR-40540 (SC) 32-33. In this case, as shown above, the lower Court found that the trial Court did not allow the appellant's counsel to file a reply brief to address the points of law which the Prosecution raised. In that finding of the lower Court, this resulted in breach of the appellant's right to fair hearing.

I agree with the reasoning of the majority of the lower Court on this point. 6 As settled on the authorities, the function of a reply brief is to refute the new arguments in the respondent's brief, that is, a reply brief is usually filed in response to new issues raised in the respondent's brief. Sakati V. Bako and Anor (2015) LPELR -24739 (SC) 25, Godsgift V. State (supra); Unity Bank Plc V. Bouari (2008) LPELR -3411 (SC) 29 -30; B-C; Cameroon Airlines V. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A; Longe V. FBN Plc 2010 2-3 SC 61; Mozie and Ors V. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.

Although it is not mandatory for an appellant to file a reply brief. However, where a respondent's brief raises a point of law not covered in his (appellant's) brief, he (appellant) ought to file a reply (brief). Indeed, where he fails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent's brief, he may be deemed to have conceded to the points of law or issues so raised in the respondent's brief.

The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift V. State (supra); Longe V. FBN Plc (Supra); Harka Air Services (Nig) Ltd V. Keazor (2011) 6-7 (Pt. II) 1; Dairo V. Union Banks (2007) 7 SCNJ 13; Mini Lodge Ltd V. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F; A.C.B V. Apugo (1995) 6 NWLR (Pt. 399) 65; E.I.I.A V. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119: Popoola V. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Akinrinmade V. Lawal 1996 2 NWLR (pt 429) 218; Musaconi Ltd V. Aspinall (2013) LPELR-20745 (SC) 21-22.

Against this background, therefore, there can be no doubt that the lower Court was right when it held, per the majority judgment of Owoade, JCA that:

Having excluded the appellant's counsel from a right of reply on points of law by the Court order of 4/3/2006..... the trial Court shut out the appellant from fully entering his defence. The appellant was not heard.... It is therefore clear that the appellant was denied fair hearing. Italics supplied

Unarguably, the appellant's defence included not only the points he canvassed in the main brief but also his reply to the points of law which the respondent agitated in the brief urging the trial Court to find in favour of the appellant's guilt, as charged in the case of armed robbery before it. Surely, by excluding the appellant's counsel from replying to the respondent's point of law, the trial Court's approach, as the lower Court rightly found, denied the appellant of his right to fair hearing. 5 After all, the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. Otapo V. Sunmonu and Ors 1987 NWLR (Pt. 58) 587; Obaro V. Hassan (2013) LPELR- 20089 (SC) 32-33; E-B; Tunbi V. Opawole 2000 2 NWLR (pt 644) 275.

Having denied the appellant's counsel the said right, there can be no doubt that the trial Court was equally deprived of its enormous benefits. Its inevitable consequence was that a miscarriage of justice was occasioned on the appellant. Okafor and Ors V. A.G., Anambra and Ors (supra); Ibodo V. Olomu (supra); Adigun V. A-G of Oyo State (supra). I thus, entirely, endorse the lower Court's conclusion that this approach of the trial Court vitiated his entire proceedings and effectively rendered them void and of no effect. A.G, Rivers State V. Ude and Ors (2006) LPELR -626 (SC) 19; B-D.

9 My Lords, that is not the end of the matter. Learned senior counsel for the appellant agreed that the trial, having been conducted in breach of the appellant's right to fair hearing was a nullity. Somewhat, most curiously, he entertained the hope that a positive order of the trial Court should nave eventuated from the said null proceedings.

Citing Edibo V. The State (2007) 13 NWLR (Pt. 1051) 306, 327, he strenuously urged the Court to "substitute the order of re-trial made by the lower Court with an order discharging and acquitting the appellant." Paragraphs 4.11-4.20; pages 8-13 of the brief.

With respect, this submission is clearly preposterous. That is why I classified the reasoning process that yielded it that is, the submission as exemplifying the fallacy of non-sequitur. As shown above, learned senior counsel endorsed the lower Court's position that the approach of the trial Court vitiated its entire proceedings and effectively rendered them void and of no effect. Pray by what sketch of logic could such void proceedings yield a positive order of the acquittal and discharge of the appellant at the same time?

In ordinary parlance, the word "acquittal" from the Latin word verbum equivocum, may be used to express either the verdict of the jury where jury trials obtain or the judgment of a Court. Nafiu Rabiu V. Kano State (1980) LPELR -2936 (SC), citing J. B. Saunders, Words and phrases Legally Defined (Second edition); 102 -103; D-A. In effect, it is a term employed to describe a Court order which sets an accused person free from the charge of an offence, Chief of Army Staff and Ors V. Iyen (2005) LPELR -3165 (SC) 37; D- F, However, it must be emphasized that an acquittal of an accused person in a verdict can only be returned on the consideration of the case on the merits, Nigerian Air Force V. Kamaldeen (2007) 2 SC 131.

APPROPRIATE ORDER UPON BREACH OF RIGHT TO FAIR HEARING

Chief Ahamba, SAN, on the one hand, endorsed the lower Court's finding that the trial Court's violation of the appellant's right to fair hearing vitiated its that is, trial Court's entire proceedings and effectively rendered them void and of no effect. On the other hand, he nevertheless argued most strenuously that the Court's order for the appellant's re-trial was inappropriate. In his submission, he the appellant ought to have been favoured with an order for his acquittal.

Surely, the first arm of his submission is unanswerable. As already shown above, once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. Audu V. FRN (2013) LPELR -19897 (SC) 13; D-F; Akinfe V. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye V. University of Ilorin 1999 10 NWLR (Pt. 622) 290, 333.Â Even then, the effect of such a denial would be more critical in a criminal case, in the instant case, the offence charged was armed robbery, Adebisi V. State (2014) LPELR -22694 (SC) 40; A-C.

The second arm of learned senior counsel's argument is with profound respect very weak-kneed. The decision in Abodunde V. The Queen 1959 4 FSC 70, 73-74 is well acknowledged as the locus classicus on the principles for ordering a re-trial. See also; Eyokoromo and Anor V. State 1979 6-9 SC 39; 1979 NSCC 61, 65; (1979) LPELR- 1187 (SC) 6; Akwa V. The State (1969) 1 All NLR 133; Okafor V. State (1976) 5 SC 13; Ikhane V. COP (supra).

In the said Abodunde V. State (supra), the Federal Supreme Court enunciated the following five principles:

We are of the opinion that, before deciding to order a retrial, this Court must be satisfied-

(a) That there has been an error in law (including) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke Section 11 (1) of the Ordnance; (b) that leaving aside the error, or irregularity, the evidence taken as a whole discloses a substantial case against the appellant (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time (d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial and (e) that to refuse an order for a rental would occasion a greater miscarriage of justice than to grant it.

In Udo V. The State (1988) LPELR -3299 (SC) 24, this Court, after considering the five principles enunciated in Abodunde V. The Queen (supra), concluded, with respect to the fifth principle that "Paragraph (e) supra demands justice not only to the appellant but also to the deceased, his relations and dependants, and to society." It accordingly ordered a re-trial so that the appellant just like the appellant in the instant case who was facing a charge in a capital offence should take his trial; be either acquitted or be convicted, if found guilty as charged.

Like in Udo V. The State (supra), I take the view that the appellant, who was accused of the offence of armed robbery should return to the High Court of Imo State before another judge for a re-trial; be either, properly acquitted or be convicted if found guilty as charged.

In all, the reasons advanced above obviate the need for my consideration of the other issues which, as shown above, revolve around the main question of the breach of the appellant's right to fair hearing: an issue I have copiously dealt with above. I find no merit in this appeal.

Appealed dismissed. I hereby enter an order affirming the majority judgment of the lower Court. Accordingly, this matter shall be remitted to the Chief Judge of Imo State who shall, as a matter of urgency, assign it to another Judge for its expeditious hearing and determination. Appeal dismissed.

Delivered by OLUKAYODE ARIWOOLA, JSC

I had the preview of the draft of the lead judgment just delivered by my learned brother, Nweze, JSC. I am in agreement with the reasoning that led to the conclusion that the appeal lacks merit and should be dismissed. It is accordingly dismissed by me.

I abide by the consequential order remitting the case to the Chief Judge of Imo State for hearing by another Judge of the State.

Appeal dismissed.

Delivered by CLARA BATA OGUNBIYI, JSC

I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Nweze JSC. I agree that the appeal is devoid of any merit and I also dismiss same.

The central focus in this appeal is the need to adhere to the Constitutional provision of every individual of the right to fair hearing. The breach of the right is so fundamental and goes to the fundamental root of a trial.

Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides thus:

"(1). In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality."

The appellant herein was denied the right to be heard on his reply brief on the point of law. This, had occasioned a serious denial of fair hearing against the appellant. It is a miscarriage of justice.

The justice of this case can be met only if both parties are heard. The remedy in my view must call for the hearing of the entire case levied against the appellant for proper determination.

In the same terms as the lead judgment of my learned brother Nweze, JSC, the hearing must be expeditious and before another judge.

Appeal is also dismissed by me.

Delivered by AMIRU SANUSI, JSC

I have had the advantage of reading a copy of the draft judgment of my learned brother C.C. Nweze JSC just delivered. My noble Lord has ably and painstakingly dealt with all the salient issues canvassed by learned counsel to the parties in this appeal. I entirely agree with the reasons and conclusion he arrived at that this appeal lacks merit and deserves to be dismissed. I too accordingly do same and endorse the order of retrial of the appellant by another judge of the same High Court with minimum of delay.

I however would like to chip in few comments in support of the lead judgment. The High Court of Imo State ("the trial Court" for short) after taking evidence of witnesses to the parties did not hear the Reply On point of law by the learned counsel for the Appellant but instead it adjourned to deliver its judgment in which it convicted the appellant as charged having found him guilty of committing the offence of armed robbery, contrary to Section 1 (2) b of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 Vol.14 of Laws of the Federation of Nigeria.

Aggrieved by the judgment of the trial Court, the appellant appealed to the Court of Appeal "the Court below") which by majority, allowed his appeal and ordered the remittal of the case to the Chief Judge of Imo State for the retrial of the case by another judge of the same High Court.

The learned senior counsel for the appellant Chief Mike Ahamba became pique by the retrial order of the case by the Court below, hence he appealed to this Court. The learned senior counsel's complaint is that the lower Court or Court below should have discharged and acquitted the appellant instead of ordering that the case should be retried.

Learned senior counsel to the appellant is of the opinion that address of counsel is essential part of a parties case as such a trial Court is duty bound to give parties the opportunity of addressing it. He cited Bernard Okoebor V. Police (2003) 5 SCNJ 52. He said having not afforded the appellant the opportunity to ventilate his grievances by way of presenting his Reply Address, the trial Court had breached the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria of 1999 as amended). See Bamgboye V. Unilorin 1999 6 SCNJ 295.

On his part, the learned counsel for the respondent submitted that by its majority decision, the Court below held that the trial Court's error was simply its failure to allow the appellant's learned counsel to amplify on his written address before the trial Court delivered its judgment.

It seems to me that the fulcrum of the appellant's appeal centered on the lower Court's majority decision ordering that the appellant should be retried in view of the lower Court's finding per Owoade JCA as reproduces below:

"Having excluded the appellant's counsel from a sight of reply on points of law by the Court order of 4/3/2006 having fixed a date for delivering of judgment without any date for adoption of written addresses by the parties and having deprived the appellant through his counsel the opportunity to complete on his written address, the trial Court shut out the appellant from fully entering his defence. The appellant was not heard. It is therefore clear that the appellant was denied fair hearing."

From the above finding of the Court below, the bottom line is that the trial Court by not affording the appellant's counsel to file a Reply to address, it on points of law which were raised by the Appellant, such approach by the trial Court amounted to breach of his right of fair bearing by shutting him out and scuttling his right to adequately present his defence and apparently for those the Court below nullified the proceedings of the trial Court and consequently ordered a retrial of the armed robbery charge framed against the appellant.

There is no doubt, that the failure of a trial Court to afford a party the opportunity to deliver its/his address, renders the trial a nullity. It is very fundamental and Courts should not regard it as meant for it alone, as then other party should not be blinded from what his opponent relies upon in the case. I am not unmindful of the fact that in the instant case (and as rightly found by the Court below too) what the appellant was excluded from was his right of Reply on point of law. Admittedly, the importance of right of Reply on points of law, cannot be under estimated. As rightly found by the Court below too, such denial amounted to infringement of the appellant's right of fair hearing as enshrined in Section 36 of the 1999 Constitution (as amended). The question that remains to be addressed is "what is the appropriate order for the Court below to make in this circumstance?"

Now looking dispassionately at the circumstance of this case, evidence had been led by the parties in proof of its case which is a very serious offence of armed robbery which the learned trial judge rightly or wrongly relied on to convict the appellant of the offence as charged of Court after the trial Court had considered the evidence adduced by the defence i.e the appellant herein, albeit, without being afforded the opportunity to ventilate his grievances through the Reply on point of law and therefore shutting him out in presenting the said Reply on points of law. Technically speaking, such of omission by the trial Court as rightly found by the lower Court, rendered the proceedings a nullity for failure of the trial Court to afford the appellant his constitutional right of fair hearing. Justice is often described as two ways and even three way traffic namely, justice for the accused, justice for the prosecution and even justice for the society.

The Learned Justices of the Court of Appeal by a majority decision, had duly considered the surrounding circumstances of this case before it deemed it appropriate to order retrial of the appellant, rather than discharging and acquitting the accused appellant which said decision had angered the learned senior counsel for the appellant who would have wanted his client discharged and8acquitted.

8 The Supreme Court has in multiplicity of its decided authorities laid down some conditions which must be considered, before retrial order of cases can be made.

These conditions though by no means exhaustive, includes the followings:-

(f) That there had been such an error in law or an irregularity in procedure which renders the trial a nullity nor makes it possible for that appeal Court to say that there has been no miscarriage of justice.

(g) That besides the error or flaw or irregularity in procedure, the evidence before the Court discloses a substantive case against the accused Person.

(h) That there are no special or exceptional circumstances which would make it unjust to put the accused on trial a second time.

(i) The offences on which the accused faced trial have very serious consequences;

(j) That the refusal to order retrial would occasion greater injustice than to grant or order such retrial order.

See the cases of Abodundu V. Queen (1959) 4 FOSC 70; Mr. David Odetayo V. Mr. Michael Bamidele (2007) 5 SC 72; Cypiacus Nnadozie & Ors V. Nze Ogbunelu Mbagwu 2008 1 SC (pt. II) 43; Edibo V. The State (2007) All FWLR (pt. 384)192 at 229.

A close and calm look at the conditions set out above and applying them to the facts and surrounding circumstances of this instant case, one is left with no iota of doubt, that this is a clear example of a case that a retrial order should be as the Court below had most appropriately done because virtually all the five conditions listed above quite easily fit in to the jacket of the case. The Court below, in my view cannot be faulted for making such order which, as I see it is, the only and best order that will meet the justice of the case, contrary to the stance of Chief Mike Ahamba SAN of learned counsel for the appellant. The majority justices of the Court below in my view, cannot be flawed in their decision in that regard.

Let me stress here, My noble Lords, that Chief Mike Ahamba SAN, holds the view that the Court below ought to have discharged and acquitted his client, the appellant in the circumstance. It is my view that to do what he prayed for would to my mind amount to calling upon Court below or even this Court to learn towards technicalities, rather than doing substantial justice. This Apex Court had for quite a long time shifted its ground by the quest of doing substantial justice instead of allowing sheer technicalities to bear in its decisions. All other Courts in this country have since been following such trend as clearly manifested in the majority decision of the Court below in this instance case which approach truly speaking, highly commendable.

Thus, for these few comments of mine and for the fuller and more detailed reasoning in the lead judgment which I entirely agree with, I also find this appeal to be meritless. It deserves to be and is accordingly dismissed by me. I abide by the consequential orders made in the lead judgment.

Delivered by PAUL ADAMU GALINJE, JSC

I have had the privilege of reading in draft the judgment lust delivered by my learned brother, C.C Nweze JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.

The majority decision of the lower Court agreed that the evidence before the trial Court against the appellant was overwhelming, but that his trial, conviction and sentence were irregular on the ground that the Appellant was denied fair hearing when the trial Court, by an order of 4th March, 2006 shut him out from fully entering his defence by refusing his application to enter a reply on Points of law.

In criminal trial, not only must the defences of the accused be considered, the Court is bound to consider the defences available to the accused which the accused himself did not raise, especially where the accused is facing a trial in which his life is at stake. See Nwankwoala V. The State (2006) 14 NWLR (Pt 1000) 663; Adebayo V. The Republic (1962) NWLR 391; Akpabio V. The State (1994) 7 NWLR (Pt. 359) 653; Oguntolu V. The State (1996) 2 NWLR (Pt. 432) 503; Malam Zakari Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at 679 and 681.

In Attah V. The State (2010) 10 NWLR (Pt. 1201) 190 at 221 Paragraph G-H, this Court per Adekeye JSC had thus to say:-

"I must emphasize that in all criminal trials, all defences raised by an accused person no matter how weak or stupid or fanciful, or figment of imagination they may appear, they must be considered by Court."

I entirely agree with the view expressed by my lord hereinabove. In the instant case, the appellant's defences included not only the points he canvassed in the main brief, but those ones in the reply on points of law to the respondent's argument in his brief. By excluding the appellant's reply to the respondent's argument, the trial Court as rightly found by the lower Court, unwittingly denied him fair hearing

5a The test of determining whether there was a fair hearing in criminal cases is always the impression of a reasonable man listening and present in Court. In the instant case, where the appellant's reply on points of law was excluded, no reasonable man present in Court would admit that he was given a fair hearing. What then is the effect of lack of fair hearing on the decision of the trial Court. It is very clear that where an accused person is convicted in absence of fair trial, the conviction and sentence are defective, null and void and should be so declared on appeal. The trial will be as though nothing has taken place. See Yusuf V. State (2011) 18 NWLR (Pt. 1279) 853 at 870; Effiom V. State (1995) 1 NWLR (pt. 373) 507; Madu V. State (1997) 1 NWLR (Pt. 482) 386.

8a Now the lower Court, by its decision ordered a retrial of this case, and that is the order that prompted this appeal was the lower Court in its decision to subject the Appellant to another trial. In Abodundu & Ors V. The Queen (1959) 1 NSCC 56 at 60 (1959) SCNLR 162; Abbott F. J Stated the conditions under which a retrial can be ordered as follows:

"We are of the opinion that before deciding to order a retrial, this Court must be satisfied:-

(f) That there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice and to invoke the proviso to Section 11(1) of the Ordinance;

(g) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the applicant.

(h) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.

(i) That the offence of which the appellant was convicted or the consequence to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and

(j) That to refuse an order for a retrial would occasion a miscarriage of justice than to grant it." See Yusuf V. The State (supra).

In addition to the above conditions for a retrial order, the overriding principle guiding the appellate Court to order retrial or not must be borne out of the justice of the case. In the instant case where the evidence against the appellant is overwhelming and considering the nature of the offence with which he is charged, the demands of justice is not for the Appellant to be discharged on mere technicalities as doing so would amount to discharging and acquitting an accused person who, in the eyes of the law, has not been tried of the heinous crime of armed robbery punishable with death. It is therefore my firm view that a retrial in the instant case would not amount to going through a second trial, but rather to ensure that the right thing is done. In other words, to refuse an order to retrial as urged by Chief Mike Ahamba, learned senior counsel for the Appellant, will occasion a greater miscarriage of justice than to grant it. See Okoduwa V. State (1988) 2 NWLR (Pt. 76) 333, Edibo V. State (2007) 13 NWLR (Pt. 1051) 306; Kajubo V. State (1988) 1 NWLR (Pt. 73) 721; Dike V. State (1996) 5 NWLR (Pt. 450) 553; Umuolo V. State (2003) 3 NWLR (Pt.803) 493; Josiah V. State (1985) 1 NWLR (Pt. 1) 125.

For these few words and the more elaborate reasoning in the lead judgment, I find no merit in this appeal which I dismiss forthwith and endorse all the consequential orders made in the lead judgment.

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