(2018) LPELR-44499(CA)

Transcription

1 ONWUDIWE v. FRN CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja MOJEED ADEKUNLE OWOADE HAMMA AKAWU BARKA BOLOUKUROMO MOSES UGO ON TUESDAY, 22ND MAY, 2018 Suit No: CA/A/25C/2017 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal CHIDIEBERE ONWUDIWE - Appellant(s) FEDERAL REPUBLIC OF NIGERIA And RATIO DECIDENDI - Respondent(s)

2 1. CONSTITUTIONAL LAW - CONSTITUTIONAL VALIDITY OF LEGISLATION: Whether Section 232 of the Administration of Criminal Justice Act, 2015 is inconsistent with the provisions of Section 36 of the Constitution "My understanding of the present appeal agrees with the sole issue being canvassed, which is whether the trial Court was right in granting the respondent's application for a witness protected trial before it, in view of the circumstance of the case. In understanding the circumstances that prodded this application, it is the affidavit evidence that must be carefully examined and looked at. In support of the application, the applicant had deposed that: 4 (a). That the 1st and 2nd Defendants are leaders of Indigenous people of Biafra (IPOB) both of whom undoubtedly commands large followership throughout the length and breadth of Nigeria and beyond who may be aggrieved by this trial. (b). That the charges against the defendants borders on terrorism and threat to National security. (c). That most of the witnesses in this case are security personnel who are involve in other lawful operations across the country while others are resident within the area of dominance of the defendants and have expressed fears of being identified by members of the public who are sympathetic to the defendants; (d). that upon the search of the 3rd defendant's residence at Ubulusiuzor in Ihiala Local Government Area (LGA) of Anambra State one (1) Emerald Magnum Pump Action Gun with Serial Number TS and one (1) Delta Magnum Pump Action Gun with Serial Number 501, as well as forty-one (41) cartridges/ammunition were recovered while the whereabouts of others is not known till date; (e). the probability of these unaccounted arms and ammunitions is feared to be in the possession of persons who are sympathetic to the defendants; (f). that the prosecution witnesses whose tour of duty involves carrying out covert operations for the security of the country will have their cover blown if made to testify publicly without any protection hence endangering public security of the country. (g). that exposing the prosecution witnesses to the public will make them easy target of highly possible attacks from those sympathetic to the defendants who are feared to be possession of some of the highly sophisticated arms and ammunitions; (h). that the fears of highly probable attack on them expressed above, has completely eroded the confidence of the prosecution witnesses to testify in this case. In simple terms, the reasons stated by the applicant now respondent before the lower Court is that, there is the reasonable apprehension that his witnesses might be endangered where their identities are not protected, and the applicants sought and placed reliance on the provisions of Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999, and Section 232 of the Administration of Criminal Justice Act, 2015, to pray that their witnesses be screened. In the recent case of Col. Mohammed Sambo Dasuki (RTD) vs. The Federal Republic of Nigeria (unreported), in appeal No. CA/A/523C/2017, delivered on the 20th of March, 2018, seeking for Courts order that prosecution witnesses be allowed to give evidence behind the screen, I opined that: "The learned counsel for the respondent contended that the appellant's submission on the issue arose from a misconception of the import and tenet of the ACJA 2015, designed to ensure efficient and effective administration of criminal justice. He alluded to the ruling of the lower Court to the effect that the use of screen does not mean secret trial, nor that the defendant would not sight them while giving evidence, and therefore not in conflict with the provisions of Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria. Rather the constitutional provision is meant to see to it that appellant is entitled to a fair hearing in public within a reasonable time. He further contended that section 232 (3) (b) merely amplified the provisions of Section 36(4) of the 1999 Constitution. He made reference to the decision of Saulawa JCA, in the case of FRN vs. Daniel (2011) LPELR-4152 (CA), where the Court reached the decision that Section 41 of NDLEA is not in conflict with the provisions of Section 37 of the 1999 Constitution. Learned silk also referred to the proviso to Section 36 (4) of the Constitution, contending that the use of the word may, indicates that the Court has discretion to consider the peculiarity of the of the case before it, and submits that the safety of lives of the parties, the witnesses who served under the appellant, an ex-national Security Adviser, retired Senior Military Officer, a prince of the Sokoto Caliphate and a heir apparent to the throne of the sultanate. He maintains that the application was not for a secret trial as wrongly portrayed by the appellant but rather a security device in favour of the witnesses. He urged the Court to construe the provision of Section 232 (2) of the ACJA positively and beneficially in the interest of the public will, benefit and justice that the witnesses testify without fear of threat to their lives or any impairment of the mind. He commended the cases of Onyuike vs. The People of Lagos State & Ors (2013) LPELR (CA), and to hold that the ACJA 2015, was not in conflict with Section 36 (4) of the Constitution. Placing reliance on the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (2017) LPELR-42813(CA), where it was held that: "However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith as done by the Appellant in this appeal or merely intended as a red herring to raise a storm in tea cup without any factual basis see Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) page where Ngwuta JSC held has pronounced emphatically." "As for the related complaint of denial of right to fair hearing, my Lord Chukwumah Eneh JSC has this to say "There can be no doubt from the foregoing that fair hearing has become the whipping principles for Counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of Counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised seriously and not rightly." Lastly counsel drew the Court's attention to the holding of the Supreme Court in the case of Omojola Akinlolu vs. The State (2017) LPELR SC, and urged that the appeal be dismissed. I understand the complaint of the appellant herein as contending that his fundamental right to fair hearing stipulated in Section 36(4) of the Constitution would be breached by the statutory provisions of Section 232 of the ACJA This Court earlier than now observed that: "The Constitution of Nigeria 1999 made fundamental provisions for the right of any accused person charged with criminal offence under any act or law to enjoy fair hearing during the trial. These fundamental basic provisions are contained in Sections 36 (4) and (b) of the said Constitution relied upon by the appellant in his brief of argument. It is not in doubt that the provision in Section 36(4) is mandatory in all criminal trials and that the accused shall be entitled to, unless the charge is withdrawn, a fair hearing in public, within a reasonable time by a Court or Tribunal. The phrase fair hearing is further expounded in the same Section 36 (6) (b) and (d) in that an accused person must be given adequate time and facilities for the preparation of his defence. Paragraph 6 (d) of Section 36 is saying that the accused person is entitled to examine in person or by his counsel, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution." See Emeka Offor & Anor vs. Comm. Of Police, Rivers State Police Command. (2013) LPELR (CA) per Tsamiya JCA. I agree with the learned senior counsel for the appellant, that a Court of law properly so called, has the bounden duty of determining and pronouncing on all issues properly placed before him for determination. See Honeywell Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR (CA) per Oseji JCA. I equally agree that the lower Court failed and or omitted to pronounce on the contention of the appellant on whether Section 232 (3) (b) of the ACJA is unconstitutional or not in view of the provisions of Section 36 (4) of the Constitution. The pertinent question would be whether the omission to pronounce on the issue canvassed occasioned any miscarriage of justice. I have not in the circumstance been convinced that the omission or failure to pronounce on the issue led to any miscarriage of justice in the circumstance of the case. In any event, let me examine whether indeed and in fact, the provisions of the ACJA 2015 contravened the constitutional provisions of Section 36 (4) of the CFRN For ease of reference, Section 232 of the Administration of Criminal Justice Act, 2015, provides: 232. (1) A trial for the offences referred to in Subsection (4) of this Section may not, where the Court so determines, be held in an open Court. (2) The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets. (3) Where in any proceedings the Court deems it necessary to protect the identity of the victim or a witness the Court may take any or all of the following measures: (a) receive evidence by video link; (b) permit the witness to be screened or masked; (c) receive written deposition of expert evidence; and (d) any other measure that the Court considers appropriate in the circumstance. (4) The provision of this section shall apply to: (a) Offences under Section 231 of this Act; (b) Offences under the Terrorism (Prevention) Amendment Act; (c) Offences relating to Economic and Financial Crimes; (d) trafficking in Persons and related offences; and (e) any other offence in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstances. (5) Any contravention of the provisions of Subsection (2) of this section shall be an offence and liable on conviction to a minimum term of one year imprisonment. Section 36 (4) on the other hand stipulates that: Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal: Provided thata) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice; b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter. It is trite that the right to fair hearing must be exercised within the legal framework provided by law for the hearing of the matter in contention, and in this case, the criminal matter filed against the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 495. The complaint of the appellant to my understanding is that where the protective measures being sought for the witnesses are considered and granted, that would be the end of fair and or open trial. To that end the case of Ackerman J.S vs. Leepile (1-3) 1986 (2) SA 333, which primarily dealt with secret trial, and the contribution of Lord Carswell in the English case of R vs. Davies (supra) where it held amongst others, that: "An important consideration is the relative importance of the witness testimony in the prosecution's case. If it constitutes the sole or decisive evidence against the defendant, anonymizing, which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly." To contend that the provisions of the Act, were unconstitutional. I have religiously studied the two cases cited against the trite position of the law. The two decisions are of persuasive nature and therefore relevant. In the latter case, Justice Rodger brought to the fore the history of shielding witnesses where he stated: "The intimidation of witnesses is an age old and world- wide problem. When cicero was intent on prosecuting verres for his reign of terror in sicily, highly placed henchmen of verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him." Although the Court recognised the right of the Court to inherently possess the jurisdiction of controlling its proceedings, concluded that where the protective measures imposed by the Court hampers the conduct of the defence in a manner and to an extent which was unlawful and rendering the trial unfair, an appeal on such a trial would be allowed. The Court however admitted of departures to the general rule in favour of open justice and confrontation of a defendant by his accuser, to include where necessity is made out, and where the witnesses reluctance to give evidence in the ordinary manner is genuine and the extent of his fear justifies a degree of anonymity. Coming to the instant case, and by Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reproduced above, the sacrosanct and immutable stipulation as to fair hearing are spelt therein. To be considered is whether the Act, by its very wording or intent conflicted with the Constitution, and particularly whether the ruling of the lower Court breached appellant's right to fair hearing. The learned counsel to the respondent submitted that the lower Court by its ruling to wit; "The prosecution witnesses shall however not be shielded to the defendant and all legal representatives in this case, including the Court." Meant that the lower Court considered the issues raised before it to the conclusion that his ruling premised on the provisions of the ACJA do not conflict with Section 36 (4) of the Constitution. He further argued that the appellant having not complained about sufficient time and opportunity to prepare for his defence, or that his legal representatives and the Court will not be able to see or to hear the witnesses give evidence and to cross examine them, but that the public are restrained or shielded from the public, Section 36 (4) of the Constitution cannot be said to have been breached. I agree with the learned senior counsel for the respondent. Indeed as posited by the lower Court and the respondent, what is contemplated here is not a secret trial as the appellant would want the Court to believe, but one recognised by the very same provisions of Section 36 (4) of the Constitution. It is my humble but firm view that the provisions of the ACJA, 2015 and in particular Section 232 is meant to further amplify the provision of Section 36 (4) (b) with respect to certain enumerated crimes therein, and does not in any way seek to annoy nor prevent the protective stipulations covered by Subsections (5) and (6) of the Constitution, and do not conflict at all. I agree that the decision of Williams JCA in the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (supra) is apt in the instant case. Whereas the English case of R vs. Davis (supra) and The South African case of Ackerman vs. Leepile (supra) cited and relied on by the appellant relates to secret trials, which delimited the identification and cross examination of witnesses, the lower Court frowned at such a trial, thus only granting the prosecution, the right to shield the witnesses from the public for reasons agreeable to him. Not only are the cases distinguishable from the instant case, and therefore unavailable to the appellant, it lays down exceptions which were unfavourable to the appellant. I am in agreement with the respondent that the contention to the effect that the section of the act under consideration contravened the Constitution was totally misconceived and the issue therefore determined against the appellant. In conclusion, let me re-echo the observation of Ogundare JSC in the case of Omojola Akinlolu vs. The State (2017) LPELR SC: "There is clearly observable, the distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affect the justice of the trial in the latter case it will not affect the trial..." The ACJA 2015 is a special Act, sui generis and the proceedings therefrom are not to be treated like ordinary civil proceedings where certain lapses and irregularities may be cured by invoking civil rules. The fountain of criminal justice proceedings in Nigeria is rooted in Section 36 (5) of the 1999 Constitution which the Appellant is at liberty to invoke, but must first allow the trial to be commenced and concluded. We respectfully refer to the observation of this Court in the Onyiukes case (supra); "It is my humble and considered opinion that sufficient safety values have been built in our judicial system to eliminate unnecessary destructive objections to the prosecution of cases. The trial Court should be allowed to hear matters to their logical conclusions and let the lawyers fish out the errors and take them to the appellate Courts. That way, matters will be concluded timeously and parties can move on rather than spend ten years going back and forth on preliminary issues. The bourgeoning culture of arresting proceedings, prosecutions, investigations etc., is becoming quite worrisome. We must stop this impunity of obstruction of legal processes from progressing." I still find the permutations made in the resolution of that case very relevant to the case at hand and I adopt the same in the resolution of this appeal. Applicant does not need to name the witnesses who are to be screened, and to say that the alleged offences must be proved in order for the Court to know that the act of terrorism is to be proved, in order to grant the application, is to defeat the import of the application. If the purpose of an appeal is to see whether the trial Court was right or wrong, I venture to state that in the instant case, the lower Court was right in exercising its discretion in the circumstances before him. I see no reason to disturb the well-considered reasoning and conclusion of the lower Court, and the inevitable conclusion is that this appeal is devoid of merit, deserving of a dismissal. Hence having determined the sole issue against the appellant, this appeal is dismissed for want of merit. The ruling of the lower Court delivered on the 13th of December, 2016 in suit No. FHC/ABJ/CR/383/2015, between Chidiebere Onwudiwe and the Federal Republic of Nigeria, to the effect that the names of the prosecution witnesses who are security operatives, be classified and appear in combinations of alphabets, and that such witnesses give their evidence behind the screen to be provided by the Court is hereby affirmed."per BARKA, J.C.A. (Pp , Paras. D-E) - read in context

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4 HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling of B. F. M. Nyako J., of the Federal High Court Abuja, in suit No. FHC/ABJ/CR/382/2015 delivered on the 13th of December, Consequent upon the Respondent/Applicant s motion filed on the 11/11/2016 before the lower court praying for- 1. An Order of this Honorable Court granting leave to the prosecution witnesses to be protected by giving evidence behind screen to be provided by the Court. 2. An Order of this Honorable Court directing that the identities of all prosecution witnesses not to be disclosed in any record or report of proceedings which are accessible to the public. 3. An Order of this Honorable Court permitting all prosecution witnesses to be addressed with pseudonyms in the course of proceedings. 4. And for such other order or orders as this honourable Court may deem fit to make in the circumstance, and after taking arguments from both counsel, ruled that: However, it is not strange that sometimes, the cases are of such a nature, that the security of victims and/or witnesses 1

5 need to be protected by concealing their identities as provided for by the proviso of Section 36(4)(a) of the 1999 Constitution and also Section 232 of the (Administration of Criminal Justice Act). I need not go into them as they have been exhaustively dealt with in the earlier Ruling of this Court Per Tsoho J. While the prosecution is concerned for the safety of its witnesses who may be security operatives, the Defendant wants to know who is saying what and to be able to see their accusers, observe their demeanour and expression. Consequently in consideration of all of the above, I hereby order that the names of the prosecution witnesses who are security operative, be classified and should appear in combinations of alphabets and such witnesses will give their evidence behind screen to be provided by the Court. The Court, prosecution, defendants and their Counsel will be able to see the witnesses who should have special assess into and from the Court with a special waiting area. Case adjourns to 10-12/1/17 for trial." Irked by the lower Court s decision, granting the respondents application, appellant filed in a Notice of Appeal on the 2

6 22/12/2016 predicated on four grounds. The records having been duly compiled and transmitted to this Court on the 19th of April, 2017, parties proceeded to file in their respective briefs. The appellant filed in his brief on the 2nd of February, 2017, while the respondent s brief was filed on the 23/2/2017. On the 10/4/2018, when this appeal came up for hearing, Mr. I. Adoga, the learned counsel for the appellant, identified the brief filed by him, adopted same in urging the Court to allow the appeal. Likewise, S. M. Labaran (PSC) MOJ, the learned counsel for the respondent identified the process filed by him and adopted same in urging the Court to dismiss the appeal. Before adopting his process, Mr. Labaran sought to omit the names of the 1st, 3rd and 4th appellant/defendant on the face of the process filed by him, and also to omit the word reply therein to reflect that Chidiebere Onwudiwe was the sole appellant, and the process to also read Respondent s brief. The oral application was granted, and the processes corrected accordingly. 3

7 In the appellant s amended brief settled by Inalegwu Adoga Esq., the learned counsel for the appellant, six issues were identified for the Court s resolution. The six issues thus identified are as follows:- 1. Whether the ruling of the lower Court can be supported considering the evidence or argument adduced by the respondent? 2. Whether the honourable trial Court afforded the 2nd defendant (now appellant) the opportunity of being heard as envisaged by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? 3. Whether it was proper for a Court to grant a relief not sought for? 4. Whether the Court was right in failing to resolved the issues canvassed before it? 5. Whether the Court was right in ordering the exclusion of the public when no witnesses were included in the proof of evidence to testify against the defendant? 6. Whether the trial Court was right in ordering the Appellant to be tried as a terrorist when nothing is established that he is one? The respondent on the other hand raised a single issue for the determination of the appeal. I have therefore given serious and dispassionate consideration to the issues identified by both sides, and 4

8 after carefully considering the records and arguments of counsel, I am of the view that the sole issue crafted by the respondent is appropriate in the consideration of the appeal. Consequently I adopt the sole issue formulated and elect to be guided by the same. It reads:- Whether the trial Court was right in granting the application made by the prosecution for witness protection. Before the consideration of this issue, I find it necessary to visit the brief facts that gave rise to the instant appeal. In the affidavit evidence filed in support of the motion of 11/11/2016 earlier reproduced, it was deposed therein that; 5. A. That the 1st and 2nd Defendants are leaders of indigenous People of Biafra (IPOB) both of whom undoubtedly commands large followership throughout the length and breadth of Nigeria and beyond who may be aggrieved by this trial; 6. That the charges against the defendants borders on terrorism and threat to National Security; 7. That most of the witnesses in this case are security personnel who are involve in other lawful operations across the country while others are resident within the area of 5

9 dominance of the defendants and have expressed fears of being identified by members of the public who are sympathetic to the defendants; 8. That upon the search of the 3rd defendant s residence at Ubulusiuzor in Ihiala Local Government Area (LGA) of Anambra State one (1) Emerald Magnum Pump Action Gun with Serial Number TS and one (1) Delta Magnum Pump Action Gun with serial Number 501, as well as forty-one (41) cartridges/ammunition were recovered while the whereabouts of others is not known till date; 9. The probability of these unaccounted arms and ammunitions is feared to be in the possession of persons who are sympathetic to the defendants; 10. That the prosecution witnesses whose tour of duty involves carrying out covert operations for the security of the country will have their cover blown if made to testify publicly without any protection hence endangering public security of the country; 11. That exposing the prosecution witnesses to the public will make them easy target of highly possible attacks from those sympathetic to the defendants who are feared to be in possession of some of the highly sophisticated arms and ammunitions; 6

10 12. That the fears of highly probable attack on them expressed above, has completely eroded the confidence of the prosecution witnesses to testify in this case; 13. That the grounds mentioned above constitute special circumstances hence this application; 14. That this Court has the power to grant this application. Naturally the appellant as respondent before the lower Court, filed a counter-affidavit of three paragraphs. Materially they read as follows:- 3. a) That paragraphs 3, 4, 6 and 7 of the prosecution s ground upon which this application is based attached to the motion have conclusively found the defendants guilty and further intends to prejudice the mind of this Honourable Court before the trial proper. b) That the 2nd Defendant/Applicant was arraigned with the other Defendants for offences of conspiracy, managing an unlawful society, Terrorism contained in counts 1, 3, 9 and 10 of the charge before the Court. c) That the Defendant pleaded not guilty. d) That during proceedings in this case the officials of the State Security Service are more in number inside the Court than other litigants. 7

11 e) That no relatives of the Defendants are permitted into the Court room by the SSS. f) That the officials of the State Security Service constitute more threats and intimidations to all relations and all wellwishers of the Defendants that they are thrown off by brute force from the trial arena. g) That the respondent having pleaded not guilty and ready to establish his innocence poses no threats to the witnesses to the prosecution. h) That at this moment the security of the Court is intimidating and entirely in the hands of State Security Service operatives rather than on the Chief Registrar of The Federal High Court or the Chief Judge. i) That the defendants have already feared that activities of the State Security Service Operatives may not pave way for a fair hearing in Defendant s favour. j) That by shutting out all the relatives of the Defendants the State Security Service by their own design forcefully converted the Court into their haven for safe evidence. k) That the defendant feared the prosecution is manipulating false evidence against them by this application. 8

12 l) That the defendant/respondent had complained to his counsel that he was badly tortured and brutalised in order to force him to make a confession in a particular pattern to the taste and desire of the investigators. m) That these investigators are well known to the defendants who do not have fear of exposure. n) That apart from his plea of innocence the defendant/respondent is going to deny his forced confessional statement before the Court. o) That the defendant/respondent fear there will be no fair hearing in this particular case if unknown persons are tutored to give false evidence before this honourable Court, a process which the State Security Service is known for. p) That the defendants had already experienced the terror and highhandedness of the operative of the State Security Service while in their detention for 5 months. q) That the defendant knows that the operatives of the State Security Service are capable of framing innocent persons and going further to fabricate falsehood against the defendants therefore the defendants desires to see the witnesses. r) That the respondents claim that unlike other cases where 9

13 investigators are neutral, the office of the State Security Service are so personally interested in matters that they will stop at nothing to obtain conviction by hook or crook. s) That if the witness are screened in this particular case it will give the respondent reason to believe there will be no fair hearing. t) That there will be no harm to the witnesses if they give evidence overtly in the open Court. u) That more harm will be done to the defendants if witnesses are screened or hidden to the disadvantage of the defendants who had pleaded not guilty. v) That the respondent who pleaded not guilty be accorded the opportunity of a fair hearing and a fair trial. w) That this application by the prosecution to screen witnesses is converting this well publicised case into a secret trial. x) That the whole nation stand for a fair and open trial. y) That by this application after having brutalised the defendant the prosecution has dark skeleton in the cupboard, otherwise the investigators are known to the defendants. 10

14 z) That if this application is granted it will favour only the prosecution to the detriment of the defendants. zi) That if this application is granted in this particular case the State Security Service will become the accuser, and prosecutor in this case. zii) That if the false witnesses are screened as demanded by the prosecutor then the defendants will become the proverbial Cockroach in the Court of Chickens. ziii) That the defendant insist they are members of a Social/Business organisation not a terrorist group. The lower Court appreciated the affidavit evidence, and the arguments before it in reaching its decision. The appellant in arguing the appeal complained that the lower Court granted to the respondents reliefs not sought by the respondent, and alluded to a portion of the judgment where the Court held that: Consequently in considering all of the above, I hereby order that the names of the prosecution witness who are security operatives, be classified in combination of alphabets and such witnesses will give their evidence behind screens to be provided by the Court. The Court, prosecution, defendants and their counsel will be able to see the witnesses who 11

15 should have special access into and from the Court with a special waiting area, And submitted, that the ruling differed from the Order sought by the respondents. He also alluded to Section 36(4) of the Constitution of the Federal Republic of Nigeria 1999, and the cases of Odom vs. P.D.P (2015) EJSC (12) P. 22 at 74-75, Ekpenyong vs. Nyong (1975) 2 SC 71, Abang vs. Effiom (1976) 1 SC 71 and Abioma vs. Olomo (1978) 3 SC 1 to the effect that the Court may on its own or upon a motion by the Attorney-General or a relevant law enforcement or security Agency, protect a witness or any person in any proceeding before it where it is satisfied that the life of the witness is in danger and takes such measures as it deems fit to keep the identity and address of the witness of person, but argued that before granting the Orders sought, the lower Court ought to have satisfied itself that the life of the witnesses was in real danger. It is his contention that the lower Court granted Orders on its own volition when no such danger was established, thus granting orders not asked for. The learned counsel went further to submit that the Court erred in law when it granted the application by 12

16 the respondents to try the appellant under Section 232 of the Administration of Criminal Justice Act, when no names of the witnesses were indicated. He alluded to a certified amended charge and argued that no proof of witnesses requiring protection was indicated. He relied on the case of the F.R.N vs. Senator Wabara (2015) (EJSC) vol. 12 page 178 at , where it was held that this Court has insisted that it is oppressive and unconstitutional to put a person on trial until the Court is satisfied that the materials accompanying the application disclosed enough facts to warrant trial. Further submitting, learned counsel complained about the appellant being labelled a terrorist, when the trial Court did not resolve the issues of fact, but went ahead to hold that the appellant was indeed a terrorist. The brief response to the issues canvassed by the appellant can be located at pages 4-6 of the respondents brief. Therein, the learned counsel also alluding to Section 36(4) of the Constitution of Federal Republic of Nigeria 1999, and Section 232 of the Administration of Criminal Justice Act

17 submitted that the trial Court was right to have granted the application sought, arguing that the trial Court discharged its responsibility by not exposing the prosecution witnesses, when the case had to do with terrorism related offences, for which the appellant is standing trial. He maintained that the use of screen as a measure of protecting the witnesses is a global practice which has inched its way into our criminal justice system, insisting that the Court acted within its powers. Further alluding to his earlier submissions made before the trial Court, counsel urged this Court to dismiss the appeal. My understanding of the present appeal agrees with the sole issue being canvassed, which is whether the trial Court was right in granting the respondent s application for a witness protected trial before it, in view of the circumstance of the case. In understanding the circumstances that prodded this application, it is the affidavit evidence that must be carefully examined and looked at. In support of the application, the applicant had deposed that: 14

18 4 (a). That the 1st and 2nd Defendants are leaders of Indigenous people of Biafra (IPOB) both of whom undoubtedly commands large followership throughout the length and breadth of Nigeria and beyond who may be aggrieved by this trial. (b). That the charges against the defendants borders on terrorism and threat to National security. (c). That most of the witnesses in this case are security personnel who are involve in other lawful operations across the country while others are resident within the area of dominance of the defendants and have expressed fears of being identified by members of the public who are sympathetic to the defendants; (d). that upon the search of the 3rd defendant s residence at Ubulusiuzor in Ihiala Local Government Area (LGA) of Anambra State one (1) Emerald Magnum Pump Action Gun with Serial Number TS and one (1) Delta Magnum Pump Action Gun with Serial Number 501, as well as forty-one (41) cartridges/ammunition were recovered while the whereabouts of others is not known till date; (e). the probability of these unaccounted arms and ammunitions is feared to be in the possession of persons who are sympathetic to the defendants; 15

19 (f). that the prosecution witnesses whose tour of duty involves carrying out covert operations for the security of the country will have their cover blown if made to testify publicly without any protection hence endangering public security of the country. (g). that exposing the prosecution witnesses to the public will make them easy target of highly possible attacks from those sympathetic to the defendants who are feared to be possession of some of the highly sophisticated arms and ammunitions; (h). that the fears of highly probable attack on them expressed above, has completely eroded the confidence of the prosecution witnesses to testify in this case. In simple terms, the reasons stated by the applicant now respondent before the lower Court is that, there is the reasonable apprehension that his witnesses might be endangered where their identities are not protected, and the applicants sought and placed reliance on the provisions of Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999, and Section 232 of the Administration of Criminal Justice Act, 2015, to pray that their witnesses be screened. In the recent case of Col. Mohammed Sambo Dasuki (RTD) vs. The Federal Republic of Nigeria (unreported), 16

20 in appeal No. CA/A/523C/2017, delivered on the 20th of March, 2018, seeking for Courts order that prosecution witnesses be allowed to give evidence behind the screen, I opined that: The learned counsel for the respondent contended that the appellant s submission on the issue arose from a misconception of the import and tenet of the ACJA 2015, designed to ensure efficient and effective administration of criminal justice. He alluded to the ruling of the lower Court to the effect that the use of screen does not mean secret trial, nor that the defendant would not sight them while giving evidence, and therefore not in conflict with the provisions of Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria. Rather the constitutional provision is meant to see to it that appellant is entitled to a fair hearing in public within a reasonable time. He further contended that section 232 (3) (b) merely amplified the provisions of Section 36(4) of the 1999 Constitution. He made reference to the decision of Saulawa JCA, in the case of FRN vs. Daniel (2011) LPELR-4152 (CA), where the Court reached the decision that Section 41 of NDLEA is not 17

21 in conflict with the provisions of Section 37 of the 1999 Constitution. Learned silk also referred to the proviso to Section 36 (4) of the Constitution, contending that the use of the word may, indicates that the Court has discretion to consider the peculiarity of the of the case before it, and submits that the safety of lives of the parties, the witnesses who served under the appellant, an ex-national Security Adviser, retired Senior Military Officer, a prince of the Sokoto Caliphate and a heir apparent to the throne of the sultanate. He maintains that the application was not for a secret trial as wrongly portrayed by the appellant but rather a security device in favour of the witnesses. He urged the Court to construe the provision of Section 232 (2) of the ACJA positively and beneficially in the interest of the public will, benefit and justice that the witnesses testify without fear of threat to their lives or any impairment of the mind. He commended the cases of Onyuike vs. The People of Lagos State & Ors (2013) LPELR (CA), and to hold that the ACJA 2015, was not in conflict with Section 36 (4) of the Constitution. 18

22 Placing reliance on the case of Chevron Nig. Ltd vs. High Chief Masamibare Lowaz & Ors (2017) LPELR 42813(CA), where it was held that: However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith as done by the Appellant in this appeal or merely intended as a red herring to raise a storm in tea cup without any factual basis see Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) page where Ngwuta JSC held has pronounced emphatically. As for the related complaint of denial of right to fair hearing, my Lord Chukwumah Eneh JSC has this to say There can be no doubt from the foregoing that fair hearing has become the whipping principles for Counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of Counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised seriously and not rightly. 19

23 Lastly counsel drew the Court s attention to the holding of the Supreme Court in the case of Omojola Akinlolu vs. The State (2017) LPELR SC, and urged that the appeal be dismissed. I understand the complaint of the appellant herein as contending that his fundamental right to fair hearing stipulated in Section 36(4) of the Constitution would be breached by the statutory provisions of Section 232 of the ACJA This Court earlier than now observed that: The Constitution of Nigeria 1999 made fundamental provisions for the right of any accused person charged with criminal offence under any act or law to enjoy fair hearing during the trial. These fundamental basic provisions are contained in Sections 36 (4) and (b) of the said Constitution relied upon by the appellant in his brief of argument. It is not in doubt that the provision in Section 36(4) is mandatory in all criminal trials and that the accused shall be entitled to, unless the charge is withdrawn, a fair hearing in public, within a reasonable time by a Court or Tribunal. The phrase fair hearing is further expounded in the same Section 36 (6) (b) and (d) in that an accused person must be given adequate time and facilities for the preparation of his defence. 20

24 Paragraph 6 (d) of Section 36 is saying that the accused person is entitled to examine in person or by his counsel, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution. See Emeka Offor & Anor vs. Comm. Of Police, Rivers State Police Command. (2013) LPELR (CA) per Tsamiya JCA. I agree with the learned senior counsel for the appellant, that a Court of law properly so called, has the bounden duty of determining and pronouncing on all issues properly placed before him for determination. See Honeywell Flour Mills Plc vs. Ecobank Nigeria Ltd (2016) LPELR (CA) per Oseji JCA. I equally agree that the lower Court failed and or omitted to pronounce on the contention of the appellant on whether Section 232 (3) (b) of the ACJA is unconstitutional or not in view of the provisions of Section 36 (4) of the Constitution. The pertinent question would be whether the omission to pronounce on the issue canvassed 21

25 occasioned any miscarriage of justice. I have not in the circumstance been convinced that the omission or failure to pronounce on the issue led to any miscarriage of justice in the circumstance of the case. In any event, let me examine whether indeed and in fact, the provisions of the ACJA 2015 contravened the constitutional provisions of Section 36 (4) of the CFRN For ease of reference, Section 232 of the Administration of Criminal Justice Act, 2015, provides: 232. (1) A trial for the offences referred to in Subsection (4) of this Section may not, where the Court so determines, be held in an open Court. (2) The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets. (3) Where in any proceedings the Court deems it necessary to protect the identity of the victim or a witness the Court may take any or all of the following measures: (a) receive evidence by video link; (b) permit the witness to be screened or masked; 22

26 (c) receive written deposition of expert evidence; and (d) any other measure that the Court considers appropriate in the circumstance. (4) The provision of this section shall apply to: (a) Offences under Section 231 of this Act; (b) Offences under the Terrorism (Prevention) Amendment Act; (c) Offences relating to Economic and Financial Crimes; (d) trafficking in Persons and related offences; and (e) any other offence in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstances. (5) Any contravention of the provisions of Subsection (2) of this section shall be an offence and liable on conviction to a minimum term of one year imprisonment. Section 36 (4)on the other hand stipulates that: Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal: Provided thata) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their 23

27 legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice; b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter. It is trite that the right to fair hearing must be exercised within the legal framework provided by law for the hearing of the matter in contention, and in this case, the criminal matter filed against the appellant. See Ardo vs. INEC (2017) 13 NWLR (pt. 1583) 495. The complaint of the appellant to my understanding is that where the 24

28 protective measures being sought for the witnesses are considered and granted, that would be the end of fair and or open trial. To that end the case of Ackerman J.S vs. Leepile (1-3) 1986 (2) SA 333, which primarily dealt with secret trial, and the contribution of Lord Carswell in the English case of R vs. Davies (supra) where it held amongst others, that: An important consideration is the relative importance of the witness testimony in the prosecution s case. If it constitutes the sole or decisive evidence against the defendant, anonymizing, which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. To contend that the provisions of the Act, were unconstitutional. I have religiously studied the two cases cited against the trite position of the law. The two decisions are of persuasive nature and therefore relevant. In the latter case, Justice Rodger brought to the fore the history of shielding witnesses where he stated: The intimidation of witnesses is an age old and worldwide problem. 25

29 When cicero was intent on prosecuting verres for his reign of terror in sicily, highly placed henchmen of verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him." Although the Court recognised the right of the Court to inherently possess the jurisdiction of controlling its proceedings, concluded that where the protective measures imposed by the Court hampers the conduct of the defence in a manner and to an extent which was unlawful and rendering the trial unfair, an appeal on such a trial would be allowed. The Court however admitted of departures to the general rule in favour of open justice and confrontation of a defendant by his accuser, to include where necessity is made out, and where the witnesses reluctance to give evidence in the ordinary manner is genuine and the extent of his fear justifies a degree of anonymity. Coming to the instant case, and by Section 36 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reproduced above, the sacrosanct and immutable stipulation as to fair hearing are spelt therein. To be considered is whether the Act, by its very wording or intent 26