APPROPRIATE WAY TO REQUEST FOR FACILITIES FOR DEFENCE FROM THE OTHER PARTY

Generally, when a party wants to tender a document which is in the possession of the adverse party, a ‘notice to produce’ is served on the party in possession of the document requiring him to produce those documents or paper for the court’s inspection. However, there may now be a different approach to this trend. In this judgment delivered recently by the Supreme Court, it was said about the effect of a ‘notice to produce’ that “A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.” Per GALINJE, J.S.C. (P. 8, Paras. B-E)

The Court went on to talk extensively about the appropriate way to request for facilities in possession of the other party. Paul Adamu Galinje, J.S.C., delivering the Leading Judgment, said “If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial Court for an order compelling the Respondent to make available those facilities which he required for his defence. In the passage which I reproduced elsewhere in this judgment in the case of Ebele Okoye v C.O.P (Supra) which learned counsel for the Appellant cited and placed so much reliance upon, this Court clearly stated that any request for facilities necessary for the preparation of the defence of an accused must be made to the Court. Even at the risk of repetition, I hereby reproduce part of the passage as follows:-

“Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply,” (Underlining is mine for emphasis). This Court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order.”Per GALINJE, J.S.C. (Pp. 8-9, Paras. C-E)

Giving credence to the position above, Chima Centus Nweze, J.S.C. said “in all, the learned counsel for the appellant evidently not quite conversant with the logic of the reasoning in the above decisions, failed to appreciate that the right to the ‘facilities’ for the defence of an accused person in Section 36 (6) (b) of the Constitution (supra) is not self-executory. R v Adebanjo (Supra); Layonu and Ors v State (Supra); Gaji v State (Supra).

That is, the rationale for the prescription in these authorities that the appellant (as accused person) ought to have made a request to the trial Court, either orally or in writing, for the Prosecution to oblige him with the “facilities” that would have enabled him to prepare his defence.” Per NWEZE, J.S.C. (Pp. 24 Paras. B- E)

Further, Amiru Sanusi, J.S.C., in elucidating the issue said “It is noted by me, that the appellant herein, served a notice to produce some facilities on the respondent on 30/4/2010 and had earlier on served the Attorney General, Anambra State with a petition that the prosecution was withholding some evidence from them which will facilitate their defence. It is my humble view that such request made by the appellant for supply to him of the named documents should not have been directed to the Attorney General directly. The proper channel to make such a request, is to the Court which will in turn order the prosecution to oblige him with all that he required. I am fortified on that view by the case of Ebele Okoye vs COP (2010) SC 279 which was cited and relied on by the appellant herein. Once such request is made, the trial Court must see to it that the prosecution complies with its order to avail or supply the accused/appellant with all the documents which are available. In the light of the above, I must say that the appellant should not complain that his right of fair hearing as enshrined in the provision of Section 36(6)(b) of the 1999 Constitution (as amended) was infringed or violated.” (Pp. 28-29, Paras. C-B)

The Appellant herein along with four other persons were charged and arraigned before the Anambra State High Court Holden at Awka for the offences of conspiracy to commit murder and attempted murder. By a notice dated 30th April, 2010, the Appellant and his co-accused asked the prosecution to produce certain materials for their inspection for the purpose of preparing their defence in accordance with the provision of Section 36(6)(b)and (d) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 220 (1) and 146 of the Administration of Criminal Justice Law of Anambra State 2010. The said documents were however not produced by the prosecution. This led the Accused/Appellant to posit that their fundamental right to be given adequate facilities for the preparation of their defence as enshrined in Section 36(6)(b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999, has been violated and that such violation has vitiated the Information and other processes as filed by the Prosecution (now Respondent).

Counsel for the accused persons went on to file an application dated 5th January, 2010 in which he prayed for Orders:

4. dismissing/striking out this proceedings for violating each of the Applicant’s constitutional rights to fair hearing.

5. Quashing the information as the Court lacks jurisdiction to try the offences as they brought in violation of each of the Applicant’s legal and constitutional right to fair hearing.

6. Quashing the arraignment of the Applicants on the information before this Court as the said information is incompetent and unsupported by proper Proofs of Evidence.

….among others.

The learned trial Judge heard the application and in a well considered ruling delivered on 10th September, 2012, dismissed it on the ground that the Applicants did not make a case that would warrant the grant of the application.

The accused persons/applicants individually appealed to the Court of Appeal but the Court of Appeal consolidated the appeals and they were heard together.  On the 28th July, 2015, the Court of Appeal delivered its judgment dismissing the appeal.

This extant appeal is against the decision of the Court of Appeal.

The Court adopted a sole issue for the just determination of the case:

“Whether the Information including the Proof of Evidence filed by the prosecution against the Appellant is incompetent and liable to be struck out for non-compliance with the provision of Section 146(b) and (c) of the Administration of Criminal Justice Law of Anambra State, 2010.”

The sole issue upon which the appeal is considered was resolved against the Appellant and resultantly, the appeal was dismissed.

“This now brings me to the issue of whether the Appellant’s fundamental rights to be given adequate facilities for the preparation of his defence as enshrined in Section 36(6)(b) and (d) of the 1999 Constitution of the Federal Republic of Nigeria has been violated. In answer to this issue, learned counsel for the Appellant submitted that the Information and Proof of Evidence are incompetent and should be quashed for infringing on the Appellant’s fundamental right to fair hearing/fair trial and for violating the express mandatory provisions of Section 36(6)(b) and (d) of the Constitution. Lack of fair hearing means a trial conducted contrary to all legal rules formulated to ensure that justice is done to the parties to the case. The trial of the Appellant in the instant case had not been concluded and so learned counsel’s complaint of lack of fair hearing and or fair trial is speculative and the trial Court had no jurisdiction to act on speculation. See Nnajiofor v. Ukomi (1985) 2 NWLR (Pt.9) 686. A breach of the right of fair hearing is a matter of fact that must be established by evidence. Learned counsel’s affidavit in support of his application of the trial Court admitted that statements of five witnesses had been provided and the statements of the seven witnesses that were bound over by the magistrate Court to give evidence in the case were not available. Section 36 of the Constitution provides for the provision of adequate facilities and not all the facilities.” Per GALINJE, J.S.C.(Pp. 10-11, Paras. B-C)

“If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial Court for an order compelling the Respondent to make available those facilities which he required for his defence. In the passage which I reproduced elsewhere in this judgment in the case of Ebele Okoye v C.O.P (Supra) which learned counsel for the Appellant cited and placed so much reliance upon, this Court clearly stated that any request for facilities necessary for the preparation of the defence of an accused must be made to the Court. Even at the risk of repetition, I hereby reproduce part of the passage as follows:-

“Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply,” (Underlining is mine for emphasis).This Court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order.”Per GALINJE, J.S.C. (Pp. 8-9, Paras. C-E)

“As shown in the leading judgment, in the instant case, the appellant [as accused person] alleged that the twin right under Section 36 (6) (supra), that is, the right to “facilities for his defence” had been breached.

However, he did not apply to the Court for the facilities he required his defence. Undoubtedly, counsel for the appellant misread the principle re-established in Okoye and Ors v C. O. P. and Ors (2015) LPELR -24675 (SC) 69 – 70; a principle that, actually, dates back to the decisions in R v Adebanjo (1935) 2 WACA 315; Layonu and Ors v State (1967) 1 All NLR 198; Gaji v State [1975] 5 SC 61, 83, if not earlier; also, F.R.N. v. Wabara [2013] 5 NWLR (pt 1347) 331; Ohwovoriole v F.R.N. [2003] 2 NWLR (pt 803) 176; Ikomi v The State [1986] 3 NWLR (pt 28) 340; Uwazurike v AG, Federation [2013] All FWLR (pt 691) 1520.

In all, the learned counsel for the appellant evidently not quite conversant with the logic of the reasoning in the above decisions, failed to appreciate that the right to the ” facilities “for the defence of an accused person in Section 36 (6) (b) of the Constitution (supra) is not self-executory. R v Adebanjo (Supra); Layonu and Ors v State (Supra); Gaji v State(Supra).

That is, the rationale for the prescription in these authorities that the appellant (as accused person) ought to have made a request to the trial Court, either orally or in writing, for the Prosecution to oblige him with the “facilities” that would have enabled him to prepare his defence. Attah V. State [2010] All FWLR (pt 540) 1224, 1248- 1249, citing Gaji v State (supra); Layonu and Ors v State (supra); R. v Adebanjo (supra). The explanation for this requirement could be found in the jurisprudence of the European Court of Human Rights [ECtHR) which, in interpreting Article 6 (3) (b) (supra) in pari materia with Section 36 (6) (b) of the 1999 Constitution, as amended (supra), has held that, at that stage, the entitlement to disclosure of such facilities, like statements of Prosecution’s witnesses, is not an absolute right. Thus, in criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses who are at risk of reprisals or to keep secret the methods used by the Police in the investigation of crimes. Van Mechelen and Ors v The Netherlands, [Reports of Judgments and Decisions, 1997 -11. These, however, must be weighed against the rights of the accused person. Van Mechelen and Ors v The Netherlands (supra). In effect, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 [that is, Section 36 (6) (b) of the 1999 Constitution (supra)], Van Mechelen and Ors v The Netherlands (supra).

Moreover, in order to ensure that the accused person receives a fair trial, any difficulties caused to the defence by a limitation on the said right must be sufficiently counter-balanced by the procedure which the judicial authorities followed. Doorson v The Netherlands, [Reports and Decisions of the ECtHR, 1996-11; Van Mechelen and Ors v The Netherlands (supra); see, generally, European Court of Human Rights: Guide on Article 6 of the European Convention on Human Rights, (NP: Council of Europe, 2014) 44 et seq.”Per NWEZE, J.S.C. (Pp. 23-26, Paras. D-B)

“It is noted by me, that the appellant herein, served a notice to produce some facilities on the respondent on 30/4/2010 and had earlier on served the Attorney General, Anambra State with a petition that the prosecution was withholding some evidence from them which will facilitate their defence. It is my humble view that such request made by the appellant for supply to him of the named documents should not have been directed to the Attorney General directly. The proper channel to make such a request, is to the Court which will in turn order the prosecution to oblige him with all that he required. I am fortified on that view by the case of Ebele Okoye vs COP (2010) SC 279 which was cited and relied on by the appellant herein. Once such request is made, the trial Court must see to it that the prosecution complies with its order to avail or supply the accused/appellant with all the documents which are available. In the light of the above, I must say that the appellant should not complain that his right of fair hearing as enshrined in the provision of Section 36(6)(b) of the 1999 Constitution (as amended) was infringed or violated.” Per SANUSI, J.S.C. (Pp. 28-29, Paras. C-B)

“Section 220(1) of the Law provides that an information shall contain Proofs of Evidence. Section 146 of the some law provides as follows:- “The Proofs of Evidence shall consist of:

(a) Statement of the charge against the defendant

(b) The name, address and statement of any material witness whom the prosecution intends to call;

(c) The name, address and statement of any material witness whom the prosecution does not intend to call;

Provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires;

(d) The copy of any report, if available, may by a doctor about the state of mind of a defendant in custody;

(e) Records of convictions, if any, affecting the credibility of any witness for the prosecutor;

(f) Statements of the defendant;

(g) An inventory of all exhibits to be produced to the Court at the trial and

(h) Any other statement or document which the prosecution may consider relevant to the case.

By this provision, especially Paragraph H, the list of what Proof of Evidence shall consist of is in exhaustive.

The case of Ebele Okoye v C.O.P (Supra) is distinguishable from the instant case. In that case, the Appellant made an application to the trial Court in which he requested for facilities to defend himself. It was the refusal of that application that gave birth to the appeal that came all the way to this Court. In the instant case, there was no such application before the trial Court. The order in respect of the case of Ebele Okoye v C.O.P (supra) by this Court after allowing the appeal was for the Appellant to be provided with the facilities contained in the notice to produce which was filed in the Magistrates Court Awka by the Respondent. This Court did not declare the Proofs of Evidence and the information filed at the trial Court incompetent. In the instant case, the Appellant’s application at the trial Court was premature as he did not apply formerly for the facilities he required for his defence.” Per GALINJE, J.S.C. (Pp. 11-13, Paras. G-E)

“A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.” Per GALINJE, J.S.C. (P. 8, Paras. B-E)

“My Lords, the power of this Court to reframe the appellant’s issue (s) for the purpose of accentuating the principal question in controversy in the interest of clarity and brevity has never been in doubt, Musaconi Ltd v Aspinal (2013) LPELR – 20745 (SC) 6-7; I.T.I. V. Ltd and Anor v Onyesom Community Bank Ltd (2015) LPELR – 24819 (SC) 20; B-D; Unity Bank Plc. and Anor v Bouari (2008) LPELR -3411 (SC) 21,-22; A-B; Okoro v The State [1988] 12 SC 191; [1988] 12 SCNJ 191.”Per NWEZE, J.S.C. (Pp. 2-3, Paras. E-A)

“As settled on the authorities, the function of a reply brief is to refute the new arguments in the respondent’s brief, that is, a reply brief is usually filed in response to new issues raised in the respondent’s brief. Sakati v Bako and Anor (2015) LPELR -24739 (SC) 25, Godsgift v State (supra); Unity Bank Plc v Bouari (2008) LPELR -3411 (SC) 29 -30; B-C; Cameroon Airlines v. Otutulzu (2001) LPELR -827 (SC) 40 -41; C-A; Longe v FBN Plc [2010] 2-3 SC 61; Mozie and Ors v. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C. Although it is not mandatory for an appellant to file a reply brief. However, where a respondent’s brief raises a point of law not covered in his (appellant’s) brief, he (appellant) ought to file a reply (brief). Indeed, where he fails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent’s brief, he may be deemed to have conceded to the points of law or issues so raised in the respondent’s brief. The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift v State (supra); Longe v FBN Plc (Supra); Harka Air Services (Nig) Ltd v. Keazor (2011) 6-7 (Pt. II) 1; Dairo v Union Banks (2007) 7 SCNJ 13; Mini Lodge Ltd v. Ngei and Anor (2009) LPELR-1877 (SC) 48; C-F; A.C.B v. Apugo (1995) 6 NWLR (Pt. 399) 65 E.I.I.A v. C.I E Ltd (2006 ) 4 NWLR (Pt. 969) 119: Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Akinrinmade v Lawal [1996] 2 NWLR (pt 429) 218; Musaconi Ltd v Aspinall (2013) LPELR-20745 (SC) 21-22.”Per NWEZE, J.S.C. (Pp. 18-19, Paras. C-E)

“Now, prior to the evolution of brief writing in various Rules of our Courts, counsel actually “pounded and hammered [their arguments] at the Bar.” In place of that practice which has now fallen into desuetude, one of the new features introduced by these rules is the concept of advocacy in writing, that is, brief writing, whose main purpose is to curtail the time that should have been wasted in lengthy oral arguments. Onifade v Olayiwola and Ors (1990) 7 NWLR (pt 161) 130, 160: oral arguments in which verbose counsel beat out the bush, Omojasola v. Plison Fiska Nig. Ltd and Ors (1990) 5 NWLR (Pt 151) 434, 441. Thus, although oratorical prowess was previously a great asset in advocacy due to the great changes which have been wrought in the Court rules, proficiency in the presentation of briefs has taken the place of brilliancy in oral advocacy. Gaamstac Eng. Ltd and Anor v FCDA (1988) 4 NWLR (pt 88) 296, 305-306.” Per NWEZE, J.S.C. (Pp. 17-18, Paras. B-A)

“… the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. Otapo v Sunmonu and Ors [1987] NWLR (Pt. 58) 587; Obaro v Hassan (2013) LPELR- 20089 (SC) 32-33; E-B; Tunbi v Opawole [2000] 2 NWLR (pt 644) 275.”Per NWEZE, J.S.C.(P. 20, Paras. D-E)

“…Once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. Audu v FRN (2013) LPELR -19897 (SC) 13; D-F; Akinfe v. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333. Even then, the effect of such a denial would be more critical in a criminal case, [in the instant case, the offence charged was armed robbery], Adebisi v State (2014) LPELR -22694 (SC) 40; A-C.”Per NWEZE, J.S.C. (P. 24, Paras. A-C)

“The law is settled that a party will not be allowed after pleading a particular set of material facts to turn round and base his case on a totally different set of facts without an amendment of his pleading. In other words, parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings go to no issue and should be disregarded by the Court. In the instant case, the evidence in chief of the Appellant at the trial Court was not in line with Paragraph 12 of the amended statement of claim and therefore went to no issue. See Emegokwue v Okadigbo (1973) 4 SC 113. Ekpeyone v Ayi (1973) 3 ECSLR 411. Odumosu v ACB (1976) 11 SC 56; Njoku v Eme (1973) 5 SC 293; Ogboda v Adulugba (1971) 1 ALL NLR 68; Ehimare v Emhonyon (1985) 1 NWLR (Pt.2) 177; Metalimpex v Leventis Nig. Ltd (1976) 2 SC 91.”Per GALINJE, J.S.C. (Pp. 28-29, Paras. E-B)

“The general rule adopted in this Court is that an appellant will not be allowed to raise on appeal to this Court questions or issues which were not raised or considered by the lower Court, but where the questions or issues involve substantial points of law substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision of them, the Court will allow the questions to be raised and the points taken so as to prevent an obvious miscarriage of justice. See K. Apene v Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29; Shonekan v Smith (1964) ALL NLR 168 at 173; Stool of Abinabina v Chief Kojo Eyinadu (1953) A.C 209 at 215. One of the exceptions to this general rule is where the questions or issues in contention touch on the jurisdiction of the lower Court, a party can raise them even for the 1^st time without seeking the leave of this Court.”Per GALINJE, J.S.C. (Pp. 12-13, Paras. E-B)

“Every ground of appeal shall arise from the judgment or decision appealed, and must be connected to the controversy between the parties. See SARAKI v. KOTOYE (1992) 11- 12 SCNJ 26; (1992) NWLR (Pt. 264) 156. It should constitute a challenge to, or an attack on the ratio of the decision on appeal. It follows that where a ground of appeal, as formulated, does not arise from the judgment on appeal, and it purports to raise and attack an issue not decided by the judgment appealed against, as is evident in the instant appeal, the same is incompetent and liable to be struck out: See C.C.B. Plc. v. EKPERI (2007) 3 NWLR (Pt. 1022) 493.”Per EKO, J.S.C. (Pp. 44-45, Paras. G-C)

“The law is long settled that a person seeking to enforce a contract must show.

1. That all conditions precedent have been fulfilled.

2. That he has performed all the terms which he ought to perform, or is willing to do so if he has not done so. See Coker v Ajewole (1976) 10 NSCC p.429.

A plaintiff who files an action in Court, asking the Court to enforce the contract in his favour cannot expect to succeed if he failed to discharge his obligation under the contract.”Per RHODES-VIVOUR, J.S.C. (P. 31, Paras. C-F)

“A contract is discharged, only when both parties are released from their obligation under the agreement. A contract is usually discharged by performances.”Per BAGE, J.S.C. (P. 46, Paras. C-D)

“The well laid down Position of the law is that leave must be obtained from the Supreme Court before a fresh issue not canvassed in the lower Courts can be argued, but where the fresh issue relates to the issue of jurisdiction it must be brought for the notice of the adverse party and can be argued with or without the leave of this Court even if it is coming before this Court for the first time. See Obiakor v State (2002) 6 SC (Pt.II) p.33.”Per RHODES-VIVOUR, J.S.C. (P. 21, Paras. D-E)

“The second prayer has to do with the grant of leave to raise fresh or new issue not raised or canvassed at the two lower Courts. It appears to me that the issue sought to be freshly or newly raised relates to point of jurisdiction. The law is trite, that issue that relates to jurisdiction before being raised, the adverse party must as of necessity be put on notice and such notification can only be effectively done by obtaining the leave of this Court since it is sought to be raised for the first time in this Court. It is also settled law that, though question of law and jurisdiction can be raised at any time in the proceedings, however in view of the importance and fundamental nature of the topical issue of jurisdiction which is the lifewire or spinal cord of any case or matter, the law requires that parties must be given opportunity to address it on that in order not to breach the time-honoured principle or rules of fair hearing, It is basically in view of that principle of law, that where a party to an appeal is desirous of raising new or fresh issue on jurisdiction which was never raised in any of the two Courts below, should and indeed must seek and obtain leave of Court where he intends to raise it.”Per SANUSI, J.S.C. (Pp. 33-34, Paras. D-D)

“The law is also well settled that the best of adjudication which should earn the justice of a case is that which is decided on the participation by all parties in a proceeding. Section 36(1) of 1999 Constitution, on the concept of fair hearing, is very well enshrined into our Constitution and hence judicial system.”Per OGUNBIYI, J.S.C. (P. 24, Paras. B-D)

“The law is very clear that where any notice or any other process is required to have an address for service endorsed on, it shall not be deemed to have been properly filed unless such address has been endorsed on it. See Order 2 Rule 1 (2) of the Supreme Court Rules 2014 (as amended).”Per GALINJE, J.S.C. (Pp. 14-15, Paras. E-A)

“Jurisdiction is a substantial question of law. It can only be ousted by clear provisions of the Constitution or Statute. It is a threshold matter, so once raised even for the first time in the top Court it must be determined quickly as it is the lifewire of the Court. See Madukolu v Nkemdilim (1962) 2 NSCC p.374 Obiuwebi v CBN (2011) 2-3 SC (PT.1) P.46.”Per RHODES-VIVOUR, J.S.C. (Pp.  21-22, Paras. F-A)

“Motions are generally argued on the basis of the grounds upon which they are predicated, the supporting affidavits and counter affidavits. I am not aware of any provisions in the Rules of this Court that authorize formulation of issues upon which applications are argued. Applicants are not allowed to proffer arguments not deposed to in their affidavit. Issues in appeals arise from grounds of appeal, which in turn must be related to the decisions against which appeals lie. On cases of applications where do these issues arise? Applicants certainly cannot formulate issues that are at variance with the contents of their affidavit and expect a favorable endorsement from the Courts.”Per GALINJE, J.S.C. (P. 3, Paras. A-D)