OMOKHODION V. FEDERAL REPUBLIC OF NIGERIA (2006)

Background

This was an interlocutory appeal arising from criminal proceedings before the Federal High Court, Kaduna. The appellant, Lawson A. Omokhodion, a former executive director of All States Trust Bank Plc, was the fifth accused person in a two-count charge brought under the Money Laundering Decree No. 3 of 1995. The charges alleged conspiracy and failure to verify the identity and address of Ebenezer Retnan Ventures before opening and operating a bank account.

The appellant was charged alongside Chief Joshua Chibi Dariye, then Governor of Plateau State, and other bank officials and entities. Chief Dariye filed a preliminary objection relying on section 308 of the 1999 Constitution, which confers immunity from criminal proceedings on a serving governor in specified circumstances. Applications for bail by the appellant and other accused persons were also pending.

Although the preliminary objection and bail applications were listed for hearing, the trial Judge first commenced the trial and took the evidence-in-chief of the prosecution’s first witness. After hearing arguments on the constitutional objection, the Judge held that the charges could not stand against the first accused and struck out his name and the allegations relating to him. The Judge then applied the “blue pencil rule” and held, without inviting submissions from the remaining accused persons, that the charges remained valid against them because there had been no challenge to their validity.

The appellant appealed against that aspect of the ruling, contending that the trial court had raised and determined a material issue without giving him an opportunity to address the court. A preliminary objection was also filed arguing that Chief Dariye was no longer a proper party because his name had been struck out. The Court of Appeal rejected that objection, holding that he remained a proper party because the appeal challenged a ruling in which he had participated and which directly concerned the striking out of his name.

Issues

1. Whether the trial Judge denied the appellant fair hearing by holding that the charges against the remaining accused persons had not been challenged, without giving them an opportunity to be heard.
2. Whether the trial court retained jurisdiction to continue the trial after striking out the name of the first accused person from the charge.

Ratio Decidendi

The Court of Appeal held that the trial Judge breached the appellant’s constitutional right to fair hearing under section 36 of the 1999 Constitution. The preliminary objection had principally concerned the effect of section 308 on the prosecution of the first accused. It did not invite the court to decide, without argument, whether the remaining counts were valid against the other accused persons or whether the trial could proceed against them in their altered form.

A court may formulate issues arising from the arguments before it, but it must not decide a material issue raised suo motu without first allowing the parties, particularly the party likely to suffer prejudice, to make submissions. The requirement applies at every material stage of proceedings and not merely when parties are physically present in court. Fair hearing means a real opportunity to be heard before an adverse decision is made.

The court further explained that fair hearing is a substantive constitutional guarantee and a central principle of natural justice, represented by the maxim audi alteram partem. It is not necessary for an appellant to prove that actual injustice resulted; the decisive question is whether a party who was entitled to be heard was given that opportunity.

Court Findings

The Court distinguished an obiter dictum from an appealable decision. An obiter dictum is an opinion or observation that does not affect the decision in the case. The statement that the charges remained valid against the other accused persons was not a mere incidental observation. It formed part of the operative reasoning and order permitting the prosecution to continue against them. It was therefore a decision capable of being challenged on appeal.

The Court also found it improper for the trial Judge to base the ruling on the supposed absence of a challenge to the validity of the charges when the parties had not been invited to argue that question. A court must not determine a case on a ground for which it has received no argument and which it has not put to the parties for their response.

In addition, the Court criticised the decision to commence the criminal trial before determining the pending objection to jurisdiction. Jurisdiction is fundamental and ordinarily must be determined as soon as it is raised. However, the Court declined to resolve the second issue conclusively because doing so might involve a premature pronouncement on the substantive criminal trial in an interlocutory appeal.

Conclusion

The appeal was allowed. The portion of the Federal High Court’s ruling declaring the charge valid against the appellant after the first accused’s name had been removed was declared a nullity. The subsequent proceedings were also set aside. The case was remitted to the trial court so that the appellant could be heard on the validity and proper form of the charge before any decision was made on whether the trial could continue. The trial court was directed to comply with the applicable criminal procedure legislation.

Significance

The decision reinforces that fair hearing is the bedrock of criminal adjudication in Nigeria. It confirms that a court cannot cure the absence of argument by assuming that a party has no objection, and that procedural fairness extends to consequential orders made after a party’s co-accused has been removed from a charge. Any ruling or proceedings founded on such a breach is liable to be declared null and void. The case also cautions trial and appellate courts against deciding substantive questions at an interlocutory stage.