Validity of Judgement Delivered in the Absence of One of the Accused Persons in Joint Trial

Facts

The Appellant and three others, were charged and tried at the High Court of Lagos State for offences bordering on conspiracy to forge documents and forgery, among others. Witnesses were called, and volumes of documents tendered by parties after the Court overruled the No-Case submission of the Appellant and other Defendants. After the conclusion of trial, and just before the adoption of Final Written Addresses and delivery of judgement, the 1st Defendant did not attend the Court proceedings. The trial Court called on parties, to address it on the propriety of going on with the proceedings in the absence of the 1st Defendant who was charged jointly with the Appellant and others. Counsel for parties agreed that the presence of the 1st Defendant could be dispensed with, as adoption of final written address is a function of their legal representatives and not that of the Defendants.

The trial Court delivered judgement, convicting the 1st, 2nd (Appellant) and 4th Defendants, while the 3rd Defendant was discharged and acquitted. Aggrieved, the Appellant appealed the decision.

Issues for Determination

The Appellant formulated four issues for determination, which were adopted by the Court:

1. Whether the decision of the lower Court to proceed with the trial of the Appellant in the absence of the 1st Defendant (Walter Wagbatsoma), amounted to a breach of the right to fair hearing and as such, rendered the entire trial a nullity.

2. Whether the lower Court rightly construed Exhibit P5 to be a forged document, consequent on which the lower Court found the Appellant guilty of the offences of forgery, conspiracy to forge documents, obtaining money by false pretence, and fraud.

3. Whether the lower Court rightly held that the actual volume of PMS supplied by the Appellant, was less than the volume of PMS claimed to have been supplied by the Appellant.

4. Whether the lower Court rightly held that the Respondent proved its allegation against the Appellant, beyond reasonable doubt.

Arguments

The crux of the Appellant’s submission in respect of the first issue, is that her right to fair hearing was breached by virtue of the absence of the 1st Defendant at some stages of the trial, as she could not challenge him based on some evidence attributed to him. She submitted that, the absence vitiated the proceedings at the trial, rendering the entire judgement illegal, unconstitutional and void ab initio. The Respondent submitted that, the 1st Defendant decided to act contrary to the Order of Court and condition of his bail by travelling to Germany, where he was arrested by Interpol and extradited to the United Kingdom. He argued further that, the trial Court had called for address on the propriety of continuing with proceedings and upon submission of Counsel, ruled in favour of continuing with the proceedings. The Appellant did not appeal this interlocutory decision, and did not seek extension of time to appeal the decision, thereby rendering ground one of the Notice of Appeal and the first issue incompetent. It was submitted that, the Appellant who appeared along with the 1st Defendant up to the conclusion of evidence, cannot claim to have been denied the opportunity to confront him with the evidence attributed to him.

The Appellant submitted on the second issue, that the trial Court was wrong to convict her for conspiracy to forge documents, forgery and fraud on the ground that the Shore Quantity Certificate (Exhibit P5) presented to the Petroleum Products Pricing Regulatory Agency (PPPRA) on the quantity of the Premium Motor Spirit (PMS) discharged at the Oil depot in July 2010, was forged in order to make excess subsidy claims. It was contended that the Shore Quantity Certificate (Exhibit P4) on the same transaction which showed that a lesser quantity of PMS was discharged at the depot, did not show that Exhibit P5 was forged. She argued that, the Respondent did not lead credible evidence to show that the Appellant by design and intention, procured or counselled anyone to forge Exhibit P5. The Respondent on the other hand, submitted that it established by credible and cogent evidence, all the ingredients of the offence of obtaining by false pretence.

On the third issue, Counsel for the Appellant submitted that the trial Court did not consider the evidence led holistically, to see that the Appellant did not submit false papers to PPPRA to make false subsidy claims. The Respondent argued to the effect that, the Prosecution proved beyond reasonable doubt that the Appellant and the 4th Defendant discharged less quantity of PMS into the depot in July, 2010, than the quantity presented in Exhibit P5 for subsidy claims.

Regarding the fourth issue, Counsel for the Appellant submitted that the High Court failed to consider various crucial and exculpating pieces of evidence, like payment of the N754,936,001.78k by the 4th Defendant to the Federal Government. It was argued that, there was no evidence that the Appellant was in the employment of the 4th Defendant, when the transaction was carried out. Respondent on its part, argued that it established that the Appellant and other Defendants, knew that Exhibit P5 and P6 were false documents procured with intent that they be used and/or acted on as genuine, to the detriment of the Federal Government. Evidence before the Court, showed that the Appellant was appointed a Director of the 4th Defendant in 2010, and by her evidence, she supervised the activities of the 4th Defendant. It submitted that, there was no evidence that the amount covered in the Charge had been paid to the Federal Government.

Court’s Judgement and Rationale Deciding the first issue, the Court held that it is the duty of the party alleging breach of his right to fair hearing, to substantiate such allegation from the record of proceedings in which the alleged denial occurred. FBN, PLC v TSA IND. LTD (2010) 15 NWLR PT. 1216) 259. Though the Appellant stated casually that she did not have the opportunity to confront the 1st Defendant with any piece of evidence attributed to him, the record shows that the Appellant was present when the 1st Defendant testified in Court, and had the opportunity to confront him in respect of any evidence given by him. Having failed to utilise this opportunity, she cannot be heard to complain of denial of such opportunity. The right is one of substance, and not a technical doctrine to be used as a shield and weapon in all cases. More so, the absence of the 1st Defendant, was at the stage of adoption of Final Written Addresses, and not at the trial stage where evidence was given by parties. Hence, the Appellant’s complaint about denial of fair hearing was spurious.

On competence of the issue, Their Lordships found that the Appellant’s issue one does not simply challenge the propriety of continuing with the proceedings which was ruled on by the trial Court, but that the continuation breached her right to fair hearing, for failure to challenge the 1st Defendant’s evidence. The complaint here relates to the procedure adopted by the trial Court, which she alleged infringed on her right to fair hearing. This is a fundamental issue that can be raised as of right, without leave of Court. Thus, the ground one of the appeal and issue one formulated thereon, are valid and competent.

Deciding the appeal on the merit, on issues No. 2 and 3, the Court considered the term forgery to include making a false document, or writing and altering a genuine document, or writing in any material part, either by subtraction or addition that includes date, attestation, seal or other material. The Court considered all the evidence presented before it, to find that the Respondent proved all the ingredients of the offence by showing that Exhibit P5 was

falsified to present a higher figure in quantity of the PMS discharged at the depot. While the original certificate (Exhibit P4) showed that about twelve million litres of PMS was discharged in conformity with other documents and letter of agreement with the depot owner, Exhibit P5 showed that over 19 million litres of PMS was said to have been discharged in the document presented to the Federal Government, for subsidy claims.

On the last issue, the Court held that the High Court considered all the evidence before it, and that the finding of the trial Court that the evidence of the Prosecution was more credible than that of the Defence which did not cast any reasonable doubt on the proof, prima facie showed that the evidence of the Appellant was considered. The Court also found that there was no evidence of repayment by the 4th Defendant to the Federal Government, of the sum alleged by the Appellant. Regarding the issue of when the Appellant joined the employment of the 4th Defendant, the Court found that documentary evidence before the Court in the form of letters executed by the Appellant in 2010 and other documents, are more credible and cannot in law, be contradicted by the oral evidence of the Appellant, on when she joined the employment of the 4th Defendant.

Though the Appellant’s issue on denial of fair hearing and other issues raised were adjudged unmeritorious, the Court nonetheless, held that the decision by the High Court to proceed with adoption of Final Written Addresses and delivery of judgement in the absence of the 1st Defendant, convicting and sentencing him along with the Appellant for the offences tried for, rendered the entire proceedings a nullity. Since the Appellant was tried jointly with the 1st Defendant, the proceeding, conviction and sentencing handed down in the absence of the 1st Defendant is a nullity. By the decision of the Supreme Court in STATE v LAWAL (2013) 7 NWLR (PT. 1354) 565 at 585, trial must be conducted in the presence of the Accused person(s) and for such purpose, trial means the whole of the proceeding, including the judgement and sentence.

Appellant Discharged.

Representation: Chief Uwechue, SAN with Nnamdi Oragwu, Uwechue Jnr, Adekola Olawoye, Ebuka Ekeanyanwu and Adeyinka Abdulsalam for the Appellant/Applicant

Adebisi Adeniyi and J.O. Adeyemi for the Respondent.

Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))

“....TRIAL MUST BE CONDUCTED IN THE PRESENCE OF THE ACCUSED PERSON(S) AND FOR SUCH PURPOSE, TRIAL MEANS THE WHOLE OF THE PROCEEDING, INCLUDING THE JUDGEMENT AND SENTENCE”