IN THE HIGH COURT OF LAGOS STATE
HOLDEN AT IKEJA JUDICIAL DIVISION
SITTING AT COURT NO. 27 IKEJA CRIMINAL DIVISION
BEFORE THE HON. JUSTICE M.A DADA (MRS.) – JUDGE
THURSDAY THE 25TH DAY OF SEPTEMBER, 2008
BETWEEN:
1. SAMUEL ADEEABU )
2. TAIWOADENIYI )
3. ADEMOLA ADLABU )
4. KEHINOEAJAYI )
5. YEMI ADEEABU )
6. OPEADETOBA ) APPLICANTS
7. ABRAHAM ADESOOBA )
8. FELIX ILESANMI )
9. MRS. AYODEEE )
10. ADEJUMO SAIIEEU )
11. JOIINSON OJRBIYI )
12. RUKAYAT AHMED )
13.WUNMISERIKI )
14. OLANREWAJU WAL1 )
15. LEKAN AGBOOLA )
AND
ATTORNEY-GENERAL OF LAGOS STATE ....... RESPONDENT
RULING
This is a criminal Appeal against the Judgment of Senior Magistrate Oracle II, Alausa, Ikeja delivered on 12111 February, 2008. The Appellants were charged for the offence of "obstructing an authorized officer (Commander Lekan) in the execution of his duty" contrary to Section 10(2) of the Street Trading And Illegal Market Law, Laws of Lagos State, 2003. They each pleaded not guilty to the one count charge and raised 7 grounds for the Appeal as set out in the Notice of Appeal dated 611' March, 2008 and Written Address filed by their Counsel, Mr. Adesina Ogunlana Esq. who submitted 4 issues for the determination of this court thus:
1. Whether the learned trial Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings?
2. Whether the conviction and sentencing of the Appellants by the learned Magistrate for the offence of "assaulting uniformed officers" is proper, valid and lawful when the charge against the Appellants before the lower court is "obstructing a Uniformed
Officer in the execution of his duties" contrary to Section 10(3) of the Street Trading
And Illegal Market Laws of Lagos Stale, 2003?
3. Whether the evidence adduced by prosecution against the Appellant is sufficient and cogent to sustain their conviction by the court.
4. Whether a court of law can impose upon conviction of Accused person sanctions
different and beyond the penalties prescribed by the law with which the Accused is charged?
He stated that the prosecution was represented by a Counsel while the Accused persons were not represented. That the prosecution called one witness who gave evidence and was not cross-examined. And while the 1st, 2nd, 3rd and 16th Accused gave evidence in respect of what transpired, the other Accused persons did not speak and the learned Magistrate went ahead to convict all the Accused persons for "assaulting Uniformed Officer". Counsel then proceeded to argue the issues as raised by him thus;
On issue 1, he argued grounds 1 and 2 of the Appeal together, namely;
1, MISDIRECTION IN LAW: 'The learned trial Magistrate misdirected herself in law by not asking the Appellants whether or not they would require or like to be represented by Counsel before and during the conduct of trial tliereby denying them fair hearing".
2. MISDIRECTION IN LAW: "The learned trial Magistrate misdirected herself in law by allowing, permitting or directing the Accused persons/Appellants to give evidence in their defence or to remain silent without enquiry into discovering and taking proper judicial action on the silence of those who by implication were recorded in the judgment as having elected not to give evidence in defence (2"'' - 8th, and 10th - 15th Appellants) thereby denying the Appellants so affected of fair hearing".
He submitted that fair hearing which is a constitutional right of every person in determination of his/her rights, obligation as well as charges against him/her entails among other things that the person is entitled to represent himself or be represented by a Legal Practitioner. He referred to Section 36(6)(b) and (c) of the 1999 Constitution and quoted Section 287 of the Criminal Procedure Act, Laws of Lagos State 2003 (sic!) and argued that the learned trial Magistrate made no enquiry from the Appellants whether they needed the service of a Counsel when under the law she ought to have done that. He therefore submitted that she did not afford
the Appellants fair hearing and the entire trial should be held as invalid and a nullity.
On issue 2, he sought to argue grounds 3 and 4 of the Notice of Appeal thus;
MISDIRECTION 1
"The learned trial Magistrate misdirected herself law when she convicted and sentenced the Appellants without any reference to the charge".
MISDIRECTION 2
"The learned trial Magistrate misdirected herself in law by holding that the Appellants committed assault on uniformed officers and thereafter sentenced them when the Appellants were not charged with the offence". He submitted that it is trite that a court of law or tribunal can only convict and sentence an Accused person on trial before it only on the charges preferred against the Accused person. That the only acceptable exception to this rule is a situation where the evidence against the Accused can only support conviction for a lesser offence, and in such cases, the lesser offence must relate and pertain to the higher offence for which the Accused is charged and same (the lower offence) must be recognized in the law creating the higher offence. He cited OKON VS. STATE, 1984, 7 S.C. and submitted that
there is no offence known or recognized as "assaulting a Uniformed Officer" in the Street Trading And Illegal Market Law, 2003. And that at no time in the trial was the charge ever
amended to reflect that the Appellants were facing charges of assault. He contended that the word "assault" differs in meaning and legal consequence from the word "obstruct" even though an act of assault can lead to obstruction of the performance of some other things. Counsel referred to the definition of "assault" at page 114 of The Black's Law Dictionary and of "obstruct" at page 1077 and concluded that "assault and obstruction" are not synonymous.
In arguing issue 3 vis-a-vis grounds 5 and 8 of the Notice of Appeal he restated his earlier argument that the court below convicted and sentenced the Appellants on a charge (assault) different from the one before the court (obstruction of an authorized officer in the discharge of his duty). That the evidence of the only witness for the Prosecution is that lie came to the premises of the 1s1 Appellant to clear illegal structure and give enlightenment campaigns on environmental sanitation and as he and his team were doing their work, they were attacked by the Appellants with the use of charms, matchets, broken bottles and fist-blows and in the process some of his officers including women were beaten up and matcheted and their official uniforms torn. Counsel observed the following;
(a) The Appellant did not confess to or admit the allegations against them in court
that they assaulted PW1 or any other KAI officials.
b) The trial took place on the very day of the alleged commission of the offence
by the Appellants
c) The prosecution did not present any weapons used by the Appellants in tlie attack or any torn uniforms or any evidence of physical injuries on the staff of KAI, and the Magistrate yet held that the prosecution proved their case against the Appellants "beyond reasonable doubt" convicted and sentenced the Appellants, even where there was uncontradicted evidence from some of the Accused person (1st, 2" ^ and 16' Accused) before the court that it was the PW1 and some KAI officials who were, according to him, the aggressors and attackers in the case. Per page 3 of the judgment.
He referred to STATE VS. ONYEUKWU, 2004, FWLR, pt. 221, 1388 at 1425 on the Supreme Court's interpretation of "proof beyond reasonable doubt". He submitted that as per the quality of the evidence led in court against the Appellants in the lower court, the
prosecution ought not to have gained their conviction. But that in the event that the court holds that the evidence presented by the prosecution against the appellant's weighty and sufficient to prove a case of assault against the Appellants the evidence cannot be relevant and cogent to ground the charge of "obstructing an authorized officer in the execution of his duty" before the court. Further that mere obstruction of an authorized person is not enough to render a person guilty of an offence under this law, the obstruction, he stated must be against an authorized person in the execution of his duty under the Street 'trading And Illegal Market Law of Lagos State. That by Sections 1 - 8 of the law, tile proper duty of an authorized officer is to stop or prevent continuation of Street Trading or Maintenance of illegal Markets in Lagos State. But
that the evidence of PWl, before the court was that he went to the premises of the 1st Appellant and his officials to clear illegal structure and give enlightenment campaign and were actually doing that when they were attacked. Therefore that even if this evidence was believed by the court, it was proof that PW1 and his men were not executing any duty under the Street Trading and Illegal Markets Law when they were allegedly attacked by the Appellants and as such the Appellants could not have been culpable of the offence for which they were charged with even if the Magistrate had sought to convict them on that charge. Therefore that the evidence adduced against the Appellants was neither cogent, weighty, sufficient or even relevant to warrant their conviction by the lower court
On the final issue, which he argued vis-a-vis grounds 6 and 7 of the Notice of Appeal, he submitted that it is settled !aw that in the exercise of his powers, a court can only act properly when such powers are exercise judicially and judiciously within the jurisdiction of the powers granted it by statute. Consequently, that a Judge or Magistrate can only convict an Accused person according to law and where he exercises his power at any stage of the trial on the determination of a case outside the limit of the power conferred on it by law, the position of the law is that such exercise or decision of the court is a nullity. He relied on NNONVE VS. ENVICUIE, 2005, AFWLR, pt. 253, p. 604 at 607 and further argued that in the instant case,
the Appellants were charged as having contradicted Section 10(3) of the Street Trading And Illegal Markets Law of Lagos State which provides a fine of N10,000 or 6 months imprisonment upon conviction. But that the Magistrate sentenced the Appellants as follows:
a) The 1st, 3rd and 9'11 were sentenced of pay a fine of N50,000.00 each or serve prison term of 6 months with hard labour.
b) Sentenced the 2nd , 4th - 8th and 10th - 15th to pay a fine ofN20.000.00 each.
Therefore that not only is the sentence (sic) ordered by the Magistrate on the Appellant's unequal, the two types of sentences for the same offence exceeded conviction limit prescribed by the law.
He finally submitted that even if the court should hold that the conviction of the Appellants was proper and valid, their sentencing should be held invalid and a nullity. He prayed for an order;
1. Allowing the appeal, quashing and setting aside the conviction and sentence of
the lower court on the Appellants delivered on 12th February, 2008.
2. For the Respondent to refund to the Appellants (.he sum of N390,000.00 paid as fine vide treasury receipt, Lagos State Government number 1781809 (Treasury I3ook No. 6A) and Environmental Enforcement Unit Administration Charge Receipt Number 0000367 by the Appellants as ordered by the lower court in her judgment.
3. And further order or oilier orders as the court may deem fit to make in die circumstance.
The Respondent's Reply dated 17"' Ainc, 2008 was filed by Mrs. O.A. Olugasa, Senior State
Counsel. She submitted 3 issues for determination thus:
1. Whether the Appellants were given fair hearing at their trial before the lower court;
2. Whether the conviction and sentencing of the Appellants by the lower court was
proper and valid, and
3. Whether (he Prosecution proved it's case against the Appellants at the lower court.
On issue l, she admitted that fair hearing is the constitutional right of every citizen of this nation quoting Section 36(6)(6) and (11) of the 1999 Constitution and referring to Section 4(3) of the Special Offences Court, Law 2003. She submitted that the Appellants were at the trial made to understand the charge against them and none of them objected to the charge or staled that he did not understand it. And furthermore voluntarily elected summary trial thereby submitting themselves to the jurisdiction of the court. That it is trite that where a party wishes to complain of an irregularity in proceedings, such complaint will only be validly raised at the earliest opportunity and referred to GWONTO VS. THE STATE. 1983, All N.R.(?) p. 109. She argued that the Appellants had ample occasions to insist on representation but they opted to represent themselves which did not amount to a miscarriage of justice. And that Section 36(11) of the 1999 Constitution states that where an Accused decides not to give evidence as was the case in respect of the 4th – 16th Appellants, such a person shall not be compelled to give evidence which she stated is in line with Section 287(a) (iii) of the Criminal Procedure Law cited in the Appellants' brief. She relied on ADEKUNLE VS. THE STATE, 2006, 6 S.C., p. 218 and therefore submitted that the Appellants were given fair hearing and the trial at the lower court should be upheld as valid.
TO BE CONTINUED…
On issue2, she submitted the Magistrate did in fact convict the Appellants with all due reference to the charges against them and merely stated that the available evidence established that assault, which according to her is one of the ingredients of the offence with which the Appellants were charged i.e. "obstructing an authorized officer in the exercise of his duty". That the reference to assault can indeed be likened to perhaps a reference to taking a piece of property intentionally in a charge of stealing for instance. Therefore that the Appellants were convicted on the charge filed against them and none other. In direct response to issue 4, of the Appellants' brief, she stated that the Appellants were rightly convicted and sentenced to 6 months in prison with an option of fine and that assuming but not conceding that the sentence of fine imposed was not in line with the fine statutorily provided, this will not suffice to warrant overturning the decision of the lower court.
On her final issue, she admitted that at the trial, the Prosecution called one witness who was cross-examined by the only Appellant who so elected and also 4 of the Appellants gave evidence in their defence which evidence was, according to her evaluated by the learned Magistrate upon which she based her judgment and on which the Appellants were found guilty. On her submission that the prosecution need not call a host of witnesses, she relied on OGUON1 VS. IBOKl, 2006, 17 NWLR, pt. 1009, p.542, ratio 11. She finally submitted that the evidence of the prosecution witness in (his case was not incredible or doubtful, hence the decision of the lower court to rely on it. And that PW1 was in the exercise of his lawful duties which include enforcing a sanitary environment in his jurisdiction and teaching the members of the public how to keep their environment clean. She urged the court to dismiss (lie Appeal in its entirety and uphold the conviction and sentence by the lower court.
The Appellants' Reply on points of law is dated 24th June, 2008. On the first issue raised by the Respondent that the Appellants had "ample occasions" to insist on legal representations by Counsel and cannot be compelled to give evidence, he submitted that the issue of compelling a witness to give evidence is not the intendment of Section 287 of the Criminal Procedure act (?) Laws of Lagos State, 2003 but that the duty of the court lo an Accused unrepresented by Counsel is to explain the options open to him for his defence, which he alleged the Magistrate failed to do and which affected the course of trial. Further that a wrong reliance and interpretation has been put by the prosecution in GWANTO VS. VS. STATE Supra. He contended that it is not the law that where irregularity was not complained of in a trial at the earliest opportunity such complaint cannot be made again otherwise it will mean that where such irregularity even where it occasions miscarriage of injustice it will be allowed to prevail. And wondered if it can be said that a constitutional issue of right to fair hearing of Accused persons is a mere irregularity? This lie answered in the negative. And that where an Accused is unrepresented by Counsel at trial, the court must present his defence options to him and not to allow him to do as lie likes at trial without being formally advised by the court as to his rights in the circumstance under the law.
On issue 2, where the Respondent submitted that "assault" is an ingredient of "obstructing an authorized Officer in the execution of his duty". Counsel contended that this is wrong and highly speculative since, according to him, obstruction in the performance of a duty does not necessarily have to take the form of an assault. He noted that the Respondent did not support their claim either by case law or by statute nor did they state what other ingredients there are.
On issue 3, he contended that (he mere fact that judgment was given on evaluated evidence does not make that Judgment necessarily right or correct by the sheer reasons of evaluation. That judgment only becomes correct, valid and unimpeachable when the evaluation is judicious and in consonance with the requirement of proof "beyond reasonable doubt" in criminal matters. Finally that the Appellants' contention is that the learned trial Magistrate did not properly evaluate the evidence before her and not that she did not evaluate the evidence at all. He urged the court to reject the Respondent's arguments as untenable and an effort to defend the indefensible.
Well, I think the first issue submitted by the Appellants for consideration summarises the issues for the court's consideration, namely, whether the learned Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings.
I shall endeavour to refrain from any vain repetition except where such is absolutely necessary, What the Appellants were charged for before the Magistrate and what they were convicted for need no repetition. It is on record that a team of KAl Officers visited the premises of the 1st Defendant/Appellant whereupon some were allegedly slapped and three women machetted, but only PW1, the team leader testified for the prosecution. His testimony was that, "I was fully dressed with the Ministry of Environment vehicle I went there with.” This cannot be assumed to extend to the others who were allegedly slapped and machetted and who did not deem it fit to testify in court themselves. This is not enough to ground conviction of assault on its own without the evidence of those who were directly assaulted even if it is assumed that the Magistrate could properly convict for assault if proved. However the evidence of PWI is in my view insufficient to prove assault since he did not testify that he was in fact assaulted by any of the Appellants. It is a general principle of criminal law that in a joint trial of two or more Accused persons for the same offence, a discharge of any of them in this way need not involve the discharge of the others as the evidence may show that each Accused person or some of them performed acts independently of what others did in furtherance of the commission of the crime. Sec ADEYOYR VS. POLICE, l95y, WKNLR, 100. Therefore there was no evidence before the learned Magistrate upon which lie could validly have convicted all (lie Appellants for assault without being specific. The conviction of the
Appellants for assault is consequently erroneous on this ground alone.
Moreover each of the Appellants pleaded not guilty to the one count charge preferred against them. By virtue of Section 189 of the Evidence Act, it can be surmised that in a joint trial, a witness called by the prosecution should be cross-examined by each of the Accused persons. It is on record that it was only the 1st Defendant/Appellant who cross-examined PW1 and his testimony was that he, PW1, was in the premises when "We were falsely imprisoned" and not more. There was nothing about assault for which all the Appellants were convicted. Each of the Appellants should have been called one after another to cross-examine PW1 and their respective responses should have been recorded.
The conduct of the defence also leaves much to be desired. The record of the Magistrate states thus: "All other Accused elect to state their story. Those who elect to speak, all be sworn on oath". However there is no record that "all other Accused" who were to "state their story" were given the opportunity as it was only the 1st, 2nd, 3rd and 16th Defendants that allegedly 'spoke'. In other words, only 4 of the Defendants were given the opportunity to "speak" and
so "defend" so to say. They were not cross-examined and there was nothing incriminating or confessional in the evidence of any of them, consequent upon which the learned Magistrate discharged the 16th Defendant forthwith. The 1st Defendant/Appellant merely said, "They wanted to enter the bakery and I told my daughter not to allow them as they had come before on 8th February 2008 when I gave those refreshments and bread . . .". We are not given the privilege of knowing whether the daughter actually locked the gate or what exactly she did as he was not cross-examined at all. The testimony of the 2nd Defendant was only thus, "I saw KAI Officers beating my uncle and I went to interfere hence I was brought here". He also was not cross-examined as to what he meant by "interfere" and especially on the evidence that KAI Officers were beating his uncle. The 3rd Defendant on his part stated inter alia, "It is true that the gate was locked but we did so that the, Police can come and interfere". lie also was not cross-examined at all. One then wonders how the learned Magistrate came to the conclusion that the offence of assault was proved and upon which conviction and sentences were based.
The learned Magistrate should have discharged all and not just the I6"' Defendant at the close of the prosecution's case. Section 244(1) of the Administration of Criminal Justice Law, 2007 states thus: At the close of the evidence in support of the charge, if it appears to the court that a prema facie case is made out against the Defendant sufficiently to require him to make a defence the court shall call upon him for his defence and - a) If the Defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely -
(i) lie shall make a statement, without being sworn from the place where he then
is, in which case he will not be liable to cross-examination: or
(ii) lie shall give evidence in the witness box, after being sworn as a witness: in which case lie will be liable to cross-examination; or
(iii) He need say nothing at all, if he so wishes, and in addition the court shall ask him if he lias any witnesses to examine or oilier evidence to adduce in his defence and the court shall then hear the Defendant and his witnesses and other evidence if any; . . . "The equivalent provision is Section 287 of the Criminal Procedure Act, Laws of the Federation of Nigeria 2004. However Section 288 of the Criminal Procedure Act Supra provides that failure to comply with the requirement in Section 287 shall not vitiate the trial PROVIDED the court called upon the Defendant for his defence and asked him if he had any witnesses and heard him and his witnesses.
The Supreme Court in JEZE VS. THE STATE, 1964, 1 All NLK, 416 held that failure of the trial court to comply with the obligations imposed by Section 287 although an irregularity, docs not necessarily render a trial null and void. The effect of such failure must depend on the circumstances of each case and the court is at liberty to allow an appeal based on the complaint of such a failure and order an acquittal or a retrial or to dismiss it if there was no miscarriage of justice. In this case, as I have already slated above, the trial was a travesty of justice and is merely compounded by the failure of the Magistrate to observe the obligation imposed by law under Section 287 of the Criminal Procedure Act. In KAJOLA VS. POLICE, 1973, 1 All NLR, 31, conviction was quashed for non-observance of the obligation.
The exercise of the power to order a retrial presupposes that there has been a valid trial. The court will therefore refuse to make an order for retrial in an appeal against conviction following a trial considered a nullity. The court would also allow an appeal and set the conviction aside
if it appears to the court that the conviction should be set aside on the ground that it was having regard to the evidence adduced, unreasonable or that the conviction should be set aside on the ground of a wrong decision on any question of law or on (lie ground that (here was a
substantial miscarriage of justice.
The Supreme Court in S1IANDE VS. STATE, 2005, VOL. 12, MJSC, 152 at pages 173 -174 paragraphs G - B held inter alia that where there is doubt in the mind of the court either as to the procedure adopted or failure to address on very important latent issues that assail or circumscribe the case, the court should acquit and discharge. I lis lordship, Pats-Acholonu J.S.C. said, "The appraisal of the Facts of this case at the trial stage and the decision of the immediate court below, I must confess leave very much to be desired. It is difficult following the sequence of events that took place whether there was indeed proof beyond all reasonable doubt. When an accused is being tried for any case whatsoever, because of the principle of law ingrained in our constitution that he or she shall be presumed innocent, it behoves of the court to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is a doubt in the mind of the court either as to the procedure adopted or failure to address on very important latentissues that assail or circumscribed the case, the court should acquit and discharge".
I therefore allow this appeal in it's entirety and hereby set the judgment of the lower court aside. Consequently, the conviction and sentences arc set aside. The Appellants are discharged and acquitted.
It is hereby also ordered that the slate do refund to (lie Appellants the sum of N390,000,00 paid as fine vide Treasury Receipt No. 1781809 and Charge Receipt No. 0000367 against the order of the lower court.
I so rule.
HOLDEN AT IKEJA JUDICIAL DIVISION
SITTING AT COURT NO. 27 IKEJA CRIMINAL DIVISION
BEFORE THE HON. JUSTICE M.A DADA (MRS.) – JUDGE
THURSDAY THE 25TH DAY OF SEPTEMBER, 2008
BETWEEN:
1. SAMUEL ADEEABU )
2. TAIWOADENIYI )
3. ADEMOLA ADLABU )
4. KEHINOEAJAYI )
5. YEMI ADEEABU )
6. OPEADETOBA ) APPLICANTS
7. ABRAHAM ADESOOBA )
8. FELIX ILESANMI )
9. MRS. AYODEEE )
10. ADEJUMO SAIIEEU )
11. JOIINSON OJRBIYI )
12. RUKAYAT AHMED )
13.WUNMISERIKI )
14. OLANREWAJU WAL1 )
15. LEKAN AGBOOLA )
AND
ATTORNEY-GENERAL OF LAGOS STATE ....... RESPONDENT
RULING
This is a criminal Appeal against the Judgment of Senior Magistrate Oracle II, Alausa, Ikeja delivered on 12111 February, 2008. The Appellants were charged for the offence of "obstructing an authorized officer (Commander Lekan) in the execution of his duty" contrary to Section 10(2) of the Street Trading And Illegal Market Law, Laws of Lagos State, 2003. They each pleaded not guilty to the one count charge and raised 7 grounds for the Appeal as set out in the Notice of Appeal dated 611' March, 2008 and Written Address filed by their Counsel, Mr. Adesina Ogunlana Esq. who submitted 4 issues for the determination of this court thus:
1. Whether the learned trial Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings?
2. Whether the conviction and sentencing of the Appellants by the learned Magistrate for the offence of "assaulting uniformed officers" is proper, valid and lawful when the charge against the Appellants before the lower court is "obstructing a Uniformed
Officer in the execution of his duties" contrary to Section 10(3) of the Street Trading
And Illegal Market Laws of Lagos Stale, 2003?
3. Whether the evidence adduced by prosecution against the Appellant is sufficient and cogent to sustain their conviction by the court.
4. Whether a court of law can impose upon conviction of Accused person sanctions
different and beyond the penalties prescribed by the law with which the Accused is charged?
He stated that the prosecution was represented by a Counsel while the Accused persons were not represented. That the prosecution called one witness who gave evidence and was not cross-examined. And while the 1st, 2nd, 3rd and 16th Accused gave evidence in respect of what transpired, the other Accused persons did not speak and the learned Magistrate went ahead to convict all the Accused persons for "assaulting Uniformed Officer". Counsel then proceeded to argue the issues as raised by him thus;
On issue 1, he argued grounds 1 and 2 of the Appeal together, namely;
1, MISDIRECTION IN LAW: 'The learned trial Magistrate misdirected herself in law by not asking the Appellants whether or not they would require or like to be represented by Counsel before and during the conduct of trial tliereby denying them fair hearing".
2. MISDIRECTION IN LAW: "The learned trial Magistrate misdirected herself in law by allowing, permitting or directing the Accused persons/Appellants to give evidence in their defence or to remain silent without enquiry into discovering and taking proper judicial action on the silence of those who by implication were recorded in the judgment as having elected not to give evidence in defence (2"'' - 8th, and 10th - 15th Appellants) thereby denying the Appellants so affected of fair hearing".
He submitted that fair hearing which is a constitutional right of every person in determination of his/her rights, obligation as well as charges against him/her entails among other things that the person is entitled to represent himself or be represented by a Legal Practitioner. He referred to Section 36(6)(b) and (c) of the 1999 Constitution and quoted Section 287 of the Criminal Procedure Act, Laws of Lagos State 2003 (sic!) and argued that the learned trial Magistrate made no enquiry from the Appellants whether they needed the service of a Counsel when under the law she ought to have done that. He therefore submitted that she did not afford
the Appellants fair hearing and the entire trial should be held as invalid and a nullity.
On issue 2, he sought to argue grounds 3 and 4 of the Notice of Appeal thus;
MISDIRECTION 1
"The learned trial Magistrate misdirected herself law when she convicted and sentenced the Appellants without any reference to the charge".
MISDIRECTION 2
"The learned trial Magistrate misdirected herself in law by holding that the Appellants committed assault on uniformed officers and thereafter sentenced them when the Appellants were not charged with the offence". He submitted that it is trite that a court of law or tribunal can only convict and sentence an Accused person on trial before it only on the charges preferred against the Accused person. That the only acceptable exception to this rule is a situation where the evidence against the Accused can only support conviction for a lesser offence, and in such cases, the lesser offence must relate and pertain to the higher offence for which the Accused is charged and same (the lower offence) must be recognized in the law creating the higher offence. He cited OKON VS. STATE, 1984, 7 S.C. and submitted that
there is no offence known or recognized as "assaulting a Uniformed Officer" in the Street Trading And Illegal Market Law, 2003. And that at no time in the trial was the charge ever
amended to reflect that the Appellants were facing charges of assault. He contended that the word "assault" differs in meaning and legal consequence from the word "obstruct" even though an act of assault can lead to obstruction of the performance of some other things. Counsel referred to the definition of "assault" at page 114 of The Black's Law Dictionary and of "obstruct" at page 1077 and concluded that "assault and obstruction" are not synonymous.
In arguing issue 3 vis-a-vis grounds 5 and 8 of the Notice of Appeal he restated his earlier argument that the court below convicted and sentenced the Appellants on a charge (assault) different from the one before the court (obstruction of an authorized officer in the discharge of his duty). That the evidence of the only witness for the Prosecution is that lie came to the premises of the 1s1 Appellant to clear illegal structure and give enlightenment campaigns on environmental sanitation and as he and his team were doing their work, they were attacked by the Appellants with the use of charms, matchets, broken bottles and fist-blows and in the process some of his officers including women were beaten up and matcheted and their official uniforms torn. Counsel observed the following;
(a) The Appellant did not confess to or admit the allegations against them in court
that they assaulted PW1 or any other KAI officials.
b) The trial took place on the very day of the alleged commission of the offence
by the Appellants
c) The prosecution did not present any weapons used by the Appellants in tlie attack or any torn uniforms or any evidence of physical injuries on the staff of KAI, and the Magistrate yet held that the prosecution proved their case against the Appellants "beyond reasonable doubt" convicted and sentenced the Appellants, even where there was uncontradicted evidence from some of the Accused person (1st, 2" ^ and 16' Accused) before the court that it was the PW1 and some KAI officials who were, according to him, the aggressors and attackers in the case. Per page 3 of the judgment.
He referred to STATE VS. ONYEUKWU, 2004, FWLR, pt. 221, 1388 at 1425 on the Supreme Court's interpretation of "proof beyond reasonable doubt". He submitted that as per the quality of the evidence led in court against the Appellants in the lower court, the
prosecution ought not to have gained their conviction. But that in the event that the court holds that the evidence presented by the prosecution against the appellant's weighty and sufficient to prove a case of assault against the Appellants the evidence cannot be relevant and cogent to ground the charge of "obstructing an authorized officer in the execution of his duty" before the court. Further that mere obstruction of an authorized person is not enough to render a person guilty of an offence under this law, the obstruction, he stated must be against an authorized person in the execution of his duty under the Street 'trading And Illegal Market Law of Lagos State. That by Sections 1 - 8 of the law, tile proper duty of an authorized officer is to stop or prevent continuation of Street Trading or Maintenance of illegal Markets in Lagos State. But
that the evidence of PWl, before the court was that he went to the premises of the 1st Appellant and his officials to clear illegal structure and give enlightenment campaign and were actually doing that when they were attacked. Therefore that even if this evidence was believed by the court, it was proof that PW1 and his men were not executing any duty under the Street Trading and Illegal Markets Law when they were allegedly attacked by the Appellants and as such the Appellants could not have been culpable of the offence for which they were charged with even if the Magistrate had sought to convict them on that charge. Therefore that the evidence adduced against the Appellants was neither cogent, weighty, sufficient or even relevant to warrant their conviction by the lower court
On the final issue, which he argued vis-a-vis grounds 6 and 7 of the Notice of Appeal, he submitted that it is settled !aw that in the exercise of his powers, a court can only act properly when such powers are exercise judicially and judiciously within the jurisdiction of the powers granted it by statute. Consequently, that a Judge or Magistrate can only convict an Accused person according to law and where he exercises his power at any stage of the trial on the determination of a case outside the limit of the power conferred on it by law, the position of the law is that such exercise or decision of the court is a nullity. He relied on NNONVE VS. ENVICUIE, 2005, AFWLR, pt. 253, p. 604 at 607 and further argued that in the instant case,
the Appellants were charged as having contradicted Section 10(3) of the Street Trading And Illegal Markets Law of Lagos State which provides a fine of N10,000 or 6 months imprisonment upon conviction. But that the Magistrate sentenced the Appellants as follows:
a) The 1st, 3rd and 9'11 were sentenced of pay a fine of N50,000.00 each or serve prison term of 6 months with hard labour.
b) Sentenced the 2nd , 4th - 8th and 10th - 15th to pay a fine ofN20.000.00 each.
Therefore that not only is the sentence (sic) ordered by the Magistrate on the Appellant's unequal, the two types of sentences for the same offence exceeded conviction limit prescribed by the law.
He finally submitted that even if the court should hold that the conviction of the Appellants was proper and valid, their sentencing should be held invalid and a nullity. He prayed for an order;
1. Allowing the appeal, quashing and setting aside the conviction and sentence of
the lower court on the Appellants delivered on 12th February, 2008.
2. For the Respondent to refund to the Appellants (.he sum of N390,000.00 paid as fine vide treasury receipt, Lagos State Government number 1781809 (Treasury I3ook No. 6A) and Environmental Enforcement Unit Administration Charge Receipt Number 0000367 by the Appellants as ordered by the lower court in her judgment.
3. And further order or oilier orders as the court may deem fit to make in die circumstance.
The Respondent's Reply dated 17"' Ainc, 2008 was filed by Mrs. O.A. Olugasa, Senior State
Counsel. She submitted 3 issues for determination thus:
1. Whether the Appellants were given fair hearing at their trial before the lower court;
2. Whether the conviction and sentencing of the Appellants by the lower court was
proper and valid, and
3. Whether (he Prosecution proved it's case against the Appellants at the lower court.
On issue l, she admitted that fair hearing is the constitutional right of every citizen of this nation quoting Section 36(6)(6) and (11) of the 1999 Constitution and referring to Section 4(3) of the Special Offences Court, Law 2003. She submitted that the Appellants were at the trial made to understand the charge against them and none of them objected to the charge or staled that he did not understand it. And furthermore voluntarily elected summary trial thereby submitting themselves to the jurisdiction of the court. That it is trite that where a party wishes to complain of an irregularity in proceedings, such complaint will only be validly raised at the earliest opportunity and referred to GWONTO VS. THE STATE. 1983, All N.R.(?) p. 109. She argued that the Appellants had ample occasions to insist on representation but they opted to represent themselves which did not amount to a miscarriage of justice. And that Section 36(11) of the 1999 Constitution states that where an Accused decides not to give evidence as was the case in respect of the 4th – 16th Appellants, such a person shall not be compelled to give evidence which she stated is in line with Section 287(a) (iii) of the Criminal Procedure Law cited in the Appellants' brief. She relied on ADEKUNLE VS. THE STATE, 2006, 6 S.C., p. 218 and therefore submitted that the Appellants were given fair hearing and the trial at the lower court should be upheld as valid.
TO BE CONTINUED…
On issue2, she submitted the Magistrate did in fact convict the Appellants with all due reference to the charges against them and merely stated that the available evidence established that assault, which according to her is one of the ingredients of the offence with which the Appellants were charged i.e. "obstructing an authorized officer in the exercise of his duty". That the reference to assault can indeed be likened to perhaps a reference to taking a piece of property intentionally in a charge of stealing for instance. Therefore that the Appellants were convicted on the charge filed against them and none other. In direct response to issue 4, of the Appellants' brief, she stated that the Appellants were rightly convicted and sentenced to 6 months in prison with an option of fine and that assuming but not conceding that the sentence of fine imposed was not in line with the fine statutorily provided, this will not suffice to warrant overturning the decision of the lower court.
On her final issue, she admitted that at the trial, the Prosecution called one witness who was cross-examined by the only Appellant who so elected and also 4 of the Appellants gave evidence in their defence which evidence was, according to her evaluated by the learned Magistrate upon which she based her judgment and on which the Appellants were found guilty. On her submission that the prosecution need not call a host of witnesses, she relied on OGUON1 VS. IBOKl, 2006, 17 NWLR, pt. 1009, p.542, ratio 11. She finally submitted that the evidence of the prosecution witness in (his case was not incredible or doubtful, hence the decision of the lower court to rely on it. And that PW1 was in the exercise of his lawful duties which include enforcing a sanitary environment in his jurisdiction and teaching the members of the public how to keep their environment clean. She urged the court to dismiss (lie Appeal in its entirety and uphold the conviction and sentence by the lower court.
The Appellants' Reply on points of law is dated 24th June, 2008. On the first issue raised by the Respondent that the Appellants had "ample occasions" to insist on legal representations by Counsel and cannot be compelled to give evidence, he submitted that the issue of compelling a witness to give evidence is not the intendment of Section 287 of the Criminal Procedure act (?) Laws of Lagos State, 2003 but that the duty of the court lo an Accused unrepresented by Counsel is to explain the options open to him for his defence, which he alleged the Magistrate failed to do and which affected the course of trial. Further that a wrong reliance and interpretation has been put by the prosecution in GWANTO VS. VS. STATE Supra. He contended that it is not the law that where irregularity was not complained of in a trial at the earliest opportunity such complaint cannot be made again otherwise it will mean that where such irregularity even where it occasions miscarriage of injustice it will be allowed to prevail. And wondered if it can be said that a constitutional issue of right to fair hearing of Accused persons is a mere irregularity? This lie answered in the negative. And that where an Accused is unrepresented by Counsel at trial, the court must present his defence options to him and not to allow him to do as lie likes at trial without being formally advised by the court as to his rights in the circumstance under the law.
On issue 2, where the Respondent submitted that "assault" is an ingredient of "obstructing an authorized Officer in the execution of his duty". Counsel contended that this is wrong and highly speculative since, according to him, obstruction in the performance of a duty does not necessarily have to take the form of an assault. He noted that the Respondent did not support their claim either by case law or by statute nor did they state what other ingredients there are.
On issue 3, he contended that (he mere fact that judgment was given on evaluated evidence does not make that Judgment necessarily right or correct by the sheer reasons of evaluation. That judgment only becomes correct, valid and unimpeachable when the evaluation is judicious and in consonance with the requirement of proof "beyond reasonable doubt" in criminal matters. Finally that the Appellants' contention is that the learned trial Magistrate did not properly evaluate the evidence before her and not that she did not evaluate the evidence at all. He urged the court to reject the Respondent's arguments as untenable and an effort to defend the indefensible.
Well, I think the first issue submitted by the Appellants for consideration summarises the issues for the court's consideration, namely, whether the learned Magistrate did give the Appellants fair hearing at the trial of the case and as such conducted proper and valid judicial proceedings.
I shall endeavour to refrain from any vain repetition except where such is absolutely necessary, What the Appellants were charged for before the Magistrate and what they were convicted for need no repetition. It is on record that a team of KAl Officers visited the premises of the 1st Defendant/Appellant whereupon some were allegedly slapped and three women machetted, but only PW1, the team leader testified for the prosecution. His testimony was that, "I was fully dressed with the Ministry of Environment vehicle I went there with.” This cannot be assumed to extend to the others who were allegedly slapped and machetted and who did not deem it fit to testify in court themselves. This is not enough to ground conviction of assault on its own without the evidence of those who were directly assaulted even if it is assumed that the Magistrate could properly convict for assault if proved. However the evidence of PWI is in my view insufficient to prove assault since he did not testify that he was in fact assaulted by any of the Appellants. It is a general principle of criminal law that in a joint trial of two or more Accused persons for the same offence, a discharge of any of them in this way need not involve the discharge of the others as the evidence may show that each Accused person or some of them performed acts independently of what others did in furtherance of the commission of the crime. Sec ADEYOYR VS. POLICE, l95y, WKNLR, 100. Therefore there was no evidence before the learned Magistrate upon which lie could validly have convicted all (lie Appellants for assault without being specific. The conviction of the
Appellants for assault is consequently erroneous on this ground alone.
Moreover each of the Appellants pleaded not guilty to the one count charge preferred against them. By virtue of Section 189 of the Evidence Act, it can be surmised that in a joint trial, a witness called by the prosecution should be cross-examined by each of the Accused persons. It is on record that it was only the 1st Defendant/Appellant who cross-examined PW1 and his testimony was that he, PW1, was in the premises when "We were falsely imprisoned" and not more. There was nothing about assault for which all the Appellants were convicted. Each of the Appellants should have been called one after another to cross-examine PW1 and their respective responses should have been recorded.
The conduct of the defence also leaves much to be desired. The record of the Magistrate states thus: "All other Accused elect to state their story. Those who elect to speak, all be sworn on oath". However there is no record that "all other Accused" who were to "state their story" were given the opportunity as it was only the 1st, 2nd, 3rd and 16th Defendants that allegedly 'spoke'. In other words, only 4 of the Defendants were given the opportunity to "speak" and
so "defend" so to say. They were not cross-examined and there was nothing incriminating or confessional in the evidence of any of them, consequent upon which the learned Magistrate discharged the 16th Defendant forthwith. The 1st Defendant/Appellant merely said, "They wanted to enter the bakery and I told my daughter not to allow them as they had come before on 8th February 2008 when I gave those refreshments and bread . . .". We are not given the privilege of knowing whether the daughter actually locked the gate or what exactly she did as he was not cross-examined at all. The testimony of the 2nd Defendant was only thus, "I saw KAI Officers beating my uncle and I went to interfere hence I was brought here". He also was not cross-examined as to what he meant by "interfere" and especially on the evidence that KAI Officers were beating his uncle. The 3rd Defendant on his part stated inter alia, "It is true that the gate was locked but we did so that the, Police can come and interfere". lie also was not cross-examined at all. One then wonders how the learned Magistrate came to the conclusion that the offence of assault was proved and upon which conviction and sentences were based.
The learned Magistrate should have discharged all and not just the I6"' Defendant at the close of the prosecution's case. Section 244(1) of the Administration of Criminal Justice Law, 2007 states thus: At the close of the evidence in support of the charge, if it appears to the court that a prema facie case is made out against the Defendant sufficiently to require him to make a defence the court shall call upon him for his defence and - a) If the Defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely -
(i) lie shall make a statement, without being sworn from the place where he then
is, in which case he will not be liable to cross-examination: or
(ii) lie shall give evidence in the witness box, after being sworn as a witness: in which case lie will be liable to cross-examination; or
(iii) He need say nothing at all, if he so wishes, and in addition the court shall ask him if he lias any witnesses to examine or oilier evidence to adduce in his defence and the court shall then hear the Defendant and his witnesses and other evidence if any; . . . "The equivalent provision is Section 287 of the Criminal Procedure Act, Laws of the Federation of Nigeria 2004. However Section 288 of the Criminal Procedure Act Supra provides that failure to comply with the requirement in Section 287 shall not vitiate the trial PROVIDED the court called upon the Defendant for his defence and asked him if he had any witnesses and heard him and his witnesses.
The Supreme Court in JEZE VS. THE STATE, 1964, 1 All NLK, 416 held that failure of the trial court to comply with the obligations imposed by Section 287 although an irregularity, docs not necessarily render a trial null and void. The effect of such failure must depend on the circumstances of each case and the court is at liberty to allow an appeal based on the complaint of such a failure and order an acquittal or a retrial or to dismiss it if there was no miscarriage of justice. In this case, as I have already slated above, the trial was a travesty of justice and is merely compounded by the failure of the Magistrate to observe the obligation imposed by law under Section 287 of the Criminal Procedure Act. In KAJOLA VS. POLICE, 1973, 1 All NLR, 31, conviction was quashed for non-observance of the obligation.
The exercise of the power to order a retrial presupposes that there has been a valid trial. The court will therefore refuse to make an order for retrial in an appeal against conviction following a trial considered a nullity. The court would also allow an appeal and set the conviction aside
if it appears to the court that the conviction should be set aside on the ground that it was having regard to the evidence adduced, unreasonable or that the conviction should be set aside on the ground of a wrong decision on any question of law or on (lie ground that (here was a
substantial miscarriage of justice.
The Supreme Court in S1IANDE VS. STATE, 2005, VOL. 12, MJSC, 152 at pages 173 -174 paragraphs G - B held inter alia that where there is doubt in the mind of the court either as to the procedure adopted or failure to address on very important latent issues that assail or circumscribe the case, the court should acquit and discharge. I lis lordship, Pats-Acholonu J.S.C. said, "The appraisal of the Facts of this case at the trial stage and the decision of the immediate court below, I must confess leave very much to be desired. It is difficult following the sequence of events that took place whether there was indeed proof beyond all reasonable doubt. When an accused is being tried for any case whatsoever, because of the principle of law ingrained in our constitution that he or she shall be presumed innocent, it behoves of the court to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is a doubt in the mind of the court either as to the procedure adopted or failure to address on very important latentissues that assail or circumscribed the case, the court should acquit and discharge".
I therefore allow this appeal in it's entirety and hereby set the judgment of the lower court aside. Consequently, the conviction and sentences arc set aside. The Appellants are discharged and acquitted.
It is hereby also ordered that the slate do refund to (lie Appellants the sum of N390,000,00 paid as fine vide Treasury Receipt No. 1781809 and Charge Receipt No. 0000367 against the order of the lower court.
I so rule.
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