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State vs. Duke

THE STATE

V

O. O. DUKE

O. O. USUN

E. L. EDET

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided )

SIMEON OSUJI EKPE, JCA

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

CA/C/57/2000

WEDNESDAY, 26TH JUNE, 2002

APPEAL - Appeal in criminal matters - Division into interlocutory and final decisions - Whether part of computation of appeal period under section 25(2)(6) Court of Appeal Act

APPEAL - Decisions in criminal matters - Period within which to appeal against - Section 25(2)(b) Court of Appeal Act

APPEAL - Fresh issue on appeal - Raising of - Need for leave of court Failure to obtain - Effect

APPEAL - Issue for determination - Formulation of more issues than grounds of appeal - Impropriety of - Whether respondent can formulate issues outside ground of appeal filed by appellant in the absence of a cross-appeal

CRIMINAL LAW AND PROCEDURE - Appeal in criminal matters - Division into interlocutory and final decisions - Whether part of computation of appeal period under section 25(2)(6) Court of Appeal Act

CRIMINAL LAW AND PROCEDURE - Appeal in criminal matters -

Requirement of leave to appeal in respect of interlocutory decisions -  Whether applicable to criminal matters

CRIMINAL LAW AND PROCEDURE - Decisions in criminal matters -

Period within which to appeal against - Section 25(2)(b) Court of Appeal Act

CRIMINAL LAW AND PROCEDURE - Lapses on the part of trial Judge or prosecutor in the course of trial - Whether every lapse can be challenged on appeal

CRIMINAL LAW AND PROCEDURE - No case submission - ‘Submission of no case’ - Meaning of

CRIMINAL LAW AND PROCEDURE - Order of retrial in criminal cases -  When will be made

CRIMINAL LAW AND PROCEDURE - Plea of an accused person - How taken - Whether failure to record accused verbatim is fatal to trial

CRIMINAL LAW AND PROCEDURE - Prosecuting counsel - Duty thereon

CRIMINAL LAW AND PROCEDURE - The rule against double jeopardy

-  Application of - Purport of - Section 36(9) & (10) 1999 Constitution

CRIMINAL LAW AND PROCEDURE - Trial - Prosecutor - Whether can impeach trial on the ground that plea of accused was not properly taken

INTERPRETATION - Acts of parliament - Interpretation of - How done where words are precise and unambiguous

JUDGMENT AND ORDERS - Retrial order - When will be made in criminal cases

PRACTICE AND PROCEDURE - Adjournment - Court’s discretion to grant same - Exercise of - Guiding principles

PRACTICE AND PROCEDURE - Issue for determination - Several issues formulated from one ground of appeal - Impropriety of - Consequence of

PRACTICE AND PROCEDURE - Raising of fresh issue on appeal - Duty on party seeking to do so

STATUTE - Statutory interpretation - Need to ensure compliance with intention of framers

Issues:

1.            Whether there was a valid and proper arraignment in accordance with the provisions of section 215 Criminal Procedure Law Cap. 32 Vol. ii Laws of Cross River State of Nigeria 1983, and if not whether the trial was a nullity.

2.            Whether the appellant had a fair hearing by reason of the refusal of the trial court to grant his application for adjournment.

Facts:

The respondents were arraigned at the High Court of Cross River State for the offences of conspiracy to steal, stealing and attempt to steal contrary to sections 518(6), 390(9) and 509 respectively of the Criminal Code. The accused pleaded not guilty to the charges and their trial resumed. Shortly after the commencement of trial, the learned trial Judge was transferred out of jurisdiction at a time the prosecution was about to close his case. The matter had to start de novo before another Judge.

At the resumed hearing before a new Judge after the prosecution had called about 5 witnesses, they asked for an adjournment on the ground that their last witnesses were not in court. The adjournment was granted. Several other adjournments came about at the instance of the prosecution until the court finally declined to grant further adjournment and closed the prosecution’s case. Upon the ordered closure of the prosecution’s case, the trial Judge called for final addresses by the defence counsel who urged the court to dismiss the prosecution’s case and acquit the accused on the ground that no case had been made against the accused by the prosecution.

In her ruling, the learned trial Judge upheld the submission of the defence counsel to the effect that the prosecution had not made out a prima facie case against the accused persons. Thus the accused persons were discharged.

Dissatisfied with that judgment, the prosecution appealed. The Court of Appeal considered section 25(2)(a) & (b) of the Court of Appeal Act.