Judicial Discretion in Sentencing and Examination of Witnesses under Nigerian Law
Helen Uchenna Agu*
Abstract
The judge as the alter ego of the Court must act within the confines of the law. A judge must deliver his judgments, rulings and sentences within a current that does not overflow the banks of law and reason. However, the judge being a ‘human being’ cannot reasonably be expected to act in a rigidly designed fashion as though he were a machine or robot. Therefore, the law has, in its wisdom, allowed for the exercise of judicial discretion by judges who must act judicially and judiciously in appropriate cases. This paper examines the exercise of judicial discretion in Nigerian courts in relation to sentencing and examination of witnesses and thereby determines whether such exercise has generally been wrongful or otherwise from the perspective of the elusive reasonable man of the law. It proffers some recommendations to guide proper exercise of discretion in the identified circumstances.
1. Introduction
Judex est lex loquens[1] is a common law maxim which aptly describes the status of the judge at law. He definesthe law as enacted by Parliament via the exercise of his interpretative skill and therefore may rightly be described as the alter ego of the law itself. Little wonder Oliver Wendell Holmes defined law as “the prophecies of what the Courts will do and nothing more pretentious…”[2] Indeed, the judge is the alter ego and dignity of the Court itself;[3] thus, his decisions in a proper proceeding brought before him determines, to a considerably large extent, the state of the law at each material time.
With an understanding of the magnitude of the powers of a judge in mind, it is obviously not difficult to grasp the reason behind the requirement at law that a judge, as the alter ego of the Court, must act within the confines of the law. Consequent thereupon, a judge must in delivering his judgments, rulings and sentence, do so in a manner that does not exceed the limits of the law in force. The foregoing notwithstanding, it is beyond debate that the judge is in fact a ‘human being,’ and being so cannot reasonably be expected to at all times act mechanically in a strictly defined procedure that does not admit of the element of discretion – which indeed the human condition naturally necessitates – as though he were some machine or robot. For this and a plenitude of other reasons[4], the law has, in its wisdom, allowed for what may be regarded as the exercise of judicial discretion by judges in appropriate cases. The allowance for the exercise of judicial discretion, however, must of necessity be construed to contemplate the exercise of that discretion by the judge in a manner which does not exceed the apparent and implied limits allowed by the law; and that is not contrary to reason. Where the exercise of judicial discretion is manifestly unreasonable or exceeds the limits contemplated by the relevant law, it may rightly be said that an improper or wrongful exercise of judicial discretion by a judge has occurred. Improper or wrongful exercise of judicial discretion may also be rightly referred to as an abuse of judicial discretion.
This paper examines the exercise of judicial discretion in relation to sentencing and examination of witnesses in Nigerian courts. The choice of these two areas is borne out of their critical role in determination of the fate of an accused person standing trial in a law court. It x-rays the jurisprudence of law and, the exercise of judicial discretion in Nigerian courts especially as it relates to the chosen thematic areas and concludes with recommendations.
2. Law and Discretion
The term “rule of law” is not easy to define. Blackstone defines law as “a rule of action applied indiscriminately to all kinds of actions.”[5] According to John Rawls, rule of law is manifested in formal justice, or “the regular and impartial administration of public rules.”[6] Under this concept of the rule of law, justice requires fair procedures and consistent enforcement of the law in the form of trials, hearings, rules of evidence, and due process.[7] In part, strict procedure also requires decision makers to relinquish some of their human discretionary powers and “give up some of the decisional freedom we each have as persons when deciding what, all things considered, is best to do.”[8] The rule of law thus implies formal rules and procedures, with the formal application of rules curbing human discretion. In sum, rule of law ensures that “government in all its actions is bound by rules fixed and announced beforehand- rules which make it possible to foresee with fair certainty how authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.” [9] Formal rules, however, are in tension with the concept of individualized justice. Discretion is necessary in handling the gap between rhetoric and reality in the legal system.[10]
The word ‘discretion’ has been defined as “a man’s own judgment as to what is best in a given case as opposed to a rule governing all of certain kind.”[11] In a legal sense, it is referred to as the responsible exercise of official conscience on all the facts of a particular situation in the light of the purposes for which the power exists.[12] In Aristotle’s view, the tension between formal law and personal discretion was to be reconciled by the fair-minded judge willing to go beyond the letter of the law to mete out justice.[13]
Every legal system must balance these two conflicting goals: the goal of certainty, which is guaranteed by formal rules, and the goal of individualized justice, which is provided for through the exercise of human discretion.[14]
The tension between law and discretion is also felt in the Nigerian legal system.
This paper will focus primarily on judicial discretion, that is, the discretion of judges as decision makers.
3. Types of Judicial Discretion
Several types of discretion exist within any legal system, and the constraints on discretion may vary accordingly. The rigid application of legal requirements can run counter to three different types of judicial discretion:[15] (1) “fact-based” discretion, which is applied to tailor the result of a case to its individual facts and circumstances; (2) “self-interested” discretion, which is applied to suit the economic or relational interests of the judge deciding the case; and (3) “ideological” discretion, which is applied to achieve results consistent with a particular public policy or ideology.[16]
The first form of judicial discretion involves the relaxation of rigid rules of law to render individual justice in a particular situation.[17] The second involves the application of discretion by the judge in a personal or self-serving way.[18] By permitting the substitution of the decision makers own personal standards for the public legal standards, this second type of discretion, the self-interested discretion, may be viewed as an abuse of discretion and is a window for judicial corruption. The third type of discretion is discretion applied to achieve a political or ideological end.[19]
All three types of discretion are evident in the Nigerian legal system. Individual judges, in deciding cases, appear not to be constrained rigidly by the four corners of black letter law. Their approach to judging reflects a blend of personal discretion designed to attain justice based on individual circumstance, self-interested discretion, and ideological discretion imposed by the state.
4. Abuse of judicial discretion
Abuse of judicial discretion may rightly be defined as a failure to take into proper consideration the facts and law relating to a particular matter or an arbitrary or unreasonable departure from precedent and settled judicial custom by a judge in a proceeding properly brought before him. Abuse of judicial discretion is a polite way of saying that a trial judge has made such a bad mistake – clearly against reason and evidence or against established law – during a trial or on ruling on a motion and that a party did not get a fair trial in a proceeding before the judge. An appellate court will use a finding of this abuse as a reason to reverse, set aside or quash the decision of the lower court. Instances of improper or wrongful exercise of judicial discretion (i.e. abuse of judicial discretion) may include the following: not allowing an important witness to testify in a trial, making improper comments that might influence a reasonable onlooker to think that the judge was favouring a particular party at the trial, showing manifest bias, or making rulings on evidence that deny a party the chance to present its side of the matter before the Court. This does not mean that the judge or indeed a trial before a judge has to be perfect, but it does mean that the judge’s actions were so far out of bounds that a party truly was denied a fair trial. Sometimes the appellate courts admits the trial judge’s error, but holds that it was not erroneous enough to have influenced the outcome of the trial,[20] often to the annoyance of the losing party. In criminal cases, improper/wrongful exercise of or abuse of judicial discretion may include sentences that are grossly too harsh or scandalously too lenient. In a divorce action, it may include awarding alimony way beyond the established formula or beyond the spouse’s or life partner’s realistic ability to pay.
Where a court, in deciding a matter before it, ignores what is required under the law or precedent, or is not reasonable in its application of the law, the appellate court may make a finding that the court has abused its discretion. Because it is a harsh finding, appellate courts are reluctant in making such a finding. But the United States Supreme Court Justice Stevens gave a great example in Rita v. United States[21], where he said that: “[A] district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.”
Of course, some people would think that was entirely reasonable, depending on their individual biases; but it seems the reasonable standard contemplated by His Lordship in this case is that of the impeccable but oft elusive reasonable man of the law free from all forms of bias and human prejudice.
Where a trial court is required to exercise its discretion in deciding a question before it, it must do so in a manner that is not manifestly contrary to logic and must not act in disregard of the available evidence. An improvident exercise of discretion is an error of law and ground for reversal of a trial court’s decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge. For instance, the traditional standard of appellate review for evidence-related questions arising during trial is the “abuse of discretion” standard. Most judicial determinations are made based on evidence introduced at legal proceedings. Evidence may consist of oral testimony, written testimony, computer-generated evidence, or documentary evidence.
Before such materials may be introduced into the record at a legal proceeding, the trial court must determine whether they satisfy certain criteria governing the admissibility of evidence. At a minimum, the court must find that the evidence offered is relevant to the legal proceedings before it. Evidence that bears on a factual or legal issue at stake in a controversy is considered relevant evidence. The relevancy of evidence is typically measured by its probative value. Evidence is generally deemed probative if it has a tendency to make the existence of any material fact more or less probable. During many civil and criminal trials, judges may have to rule on hundreds of evidentiary objections lodged by both parties. These rulings are normally snap judgments made by the Court as the unbiased arbiter in the heat of the legal battle between the parties to the case. Courts must make these decisions quickly to keep the proceedings moving on schedule. For this reason, judges are given wide latitude in making evidentiary rulings and in fact these rulings will not be over-turned on appeal unless the appellate court finds that the trial court improperly/wrongly exercised or abused its discretion.
For instance, in the American negligence case of Gorman v Hunt,[22] a Kentucky State appellate court ruled that the trial court did not abuse its discretion by admitting into evidence a posed accident-scene photograph, even though the photograph depicted a model pedestrian blindly walking into the path of the driver’s vehicle with the pedestrian’s head pointed straight ahead as if she was totally oblivious to the vehicle and other traffic. In upholding the trial court’s decision with regards to the admittance of the said evidence, the appellate court observed that the photograph was only used to show the pedestrian’s position relative to the vehicle at the time of impact and not to blame the pedestrian for being negligent. The appellate court also noted that the counsel objecting to the photograph’s admissibility was free to remind the jury of its limited relevance during cross-examination and closing arguments.
An appellate court, however, would be minded to make a finding that a trial court abused its discretion where it admits into evidence a photograph without proof that it was authentic[23]. A photograph’s authenticity may be established by a witness’s personal observations that the photograph accurately depicts what it purports to depict at the time the photograph was taken. Ordinarily the photographer who took the picture is in the best position to provide such testimony.
As we had earlier noted above, a court exercises discretion in a wide range of matters. However, for the purposes of this paper, we shall only concentrate on the areas mentioned earlier above, viz: the areas of sentencing in the criminal justice system and the examination of witnesses by a trial judge under the law of evidence and procedure.
5. Improper Exercise of Judicial Discretion in Sentencing
It would appear not an overrated proposition to assert that the whole object, and indeed, essence of the criminal law is punishment of a convicted offender.[24] It would further appear not inconsistent with the dictates of logic to maintain the position that punishment, as a necessary constituent of the criminal justice system, operates as a useful weapon in the arsenal of the State designed to keep anarchy at bay. It may seem safe to say that victims of crimes are less likely to retaliate on the perpetrators thereof if and where there exist reasonable grounds to believe that the State’s intervention by way of arrest and criminal prosecution will ultimately culminate in the just punishment of the offenders on their behalf.
If punishment is indeed the object of criminal law, it would follow, as a matter of logical reasoning that the process of sentencing deals with the way in which the principles of punishment are applied to the punishment of an offender;[25] and although the process of sentencing belongs properly to the area of criminal procedure, it is also very much connected with the substantive law.[26] Sentencing ought to be a rational process in the sense that the judge ought to have some principle or principles in mind with the aim of selecting a particular kind of sentence which would reflect the principle borne in mind. The Court may decide to impose a deterrent sentence if the offence for which conviction has been secured by the prosecution is prevalent in the community – as a way of discouraging other members of the community from committing the offence. In doing this, evidence available at the trial leading to the conviction of the offender is very crucial.
Available evidence at the trial leading to the conviction will be crucial at the stage of sentencing because the Court may, in its discretion, but as a matter of principle ought to, take into account whether any mitigating or aggravating factors will apply to either mitigate or aggravate the quantum of punishment to be imposed on the convicted offender. Whether these factors exist or not will be a matter of fact determinable from the available evidence. Whilst we would not be concerned with an analysis of all the mitigating and aggravating factors that may apply in a process of sentencing as that would be outside the scope of this work, we would quickly point out that some of the factors that may constitute aggravating factors which might, but indeed ought to, weigh on the mind of the court in deciding to make stiff the quantum of punishment are where, in a case of theft, the offender was in a position of trust; or where the accused was a public officer; or where the property stolen belonged to the offender’s employer.
Thus, apart from very rare cases, theft always attracts a custodial sentence (imposition of imprisonment term). And the range of sentence moves up the scale where the offender is in a position of trust, is a public servant, or has stolen his employer’s property. In such cases the sentencing policy is and ought to be deterrent. According to Thomas:
…The second main groups of offences of theft which tend to attract a deterrent sentence are those involving the theft by an employee of property belonging to his employers. The emphasis on deterrence is particularly marked where the offender is a public servant. Where the offence is committed by a high-grade employee or a professional man in respect of his client’s property, the Court tends to justify a tariff sentence in terms of retribution rather than deterrence. Almost invariably the offender will be a man of good character and there will be strong mitigating factors; but while the Court will make a substantial allowance for this, it will rarely depart entirely from a deterrent approach.[27]
Indeed, in R v Jacob,[28]a case involving theft of a client’s property by a solicitor, it was held that imprisonment was appropriate. In Ikpati v C.O.P.,[29]the accused, a Principal Collector of Customs, was convicted of stealing a sum of 1021 pounds being the proceeds of section sales which he was supposed to pay into a bank. He was sentenced to a fine of 100 pounds or 6 months imprisonment with hard labour. His appeal against conviction was dismissed but with regards to sentence, Taylor C.J. (of blessed memory) observed that the accused:
…was a comparatively highly placed officer in the Board of Customs and Excise, and the reasons given by the learned Chief Magistrate for such leniency in fining him one-tenth of the sum stolen is that ‘I have done this in the light of the fact that the accused has lost his job. He has been dismissed from service.’ I fail to see any rhyme of reason in this passage in his order, for anyone employed in the public service and indeed in most reputable private companies automatically lose their employment on conviction. I am aware that the accused is a first offender and after hearing both counsels on this point, I am of the view that the court below has shirked its duty in the imposition of a fine as an alternative to six months imprisonment with hard labour. I therefore order that the fine paid by the appellant be refunded to him and in its place he shall serve a term of six months imprisonment with hard labour. Even in this I feel I have been extremely lenient to the accused who has abused the trust placed in him.[30]
In the light of the foregoing, it is difficult to justify the sentence imposed by the trial court in the recent national corruption case of EFCC v John Yakubu Yusuf & Ors.[31] This was a case decided by an Abuja High Court in February, 2013, where the accused persons were charged with conspiracy to criminally misappropriate public funds and the criminal misappropriation of the sum of 27.2 billion naira, being money payable to police pensioners via the Police Pension Fund. The charge was brought under section 309 of the Penal Code[32]dealing with criminal misappropriation. The court, per Hon. Justice Abubakar Talba, found the accused guilty and sentenced him to two years imprisonment or an option of N750, 000.00 fine. The judgment ignited a public outrage.
It is submitted that the sentence above amounted to a warm judicial handshake with the corrupt accused. Indeed, the above decision is suspect and seems to have been reached in disregard of current trends relating to punishment and sentencing in the criminal justice system. With due respect to the Honourable Court in that case, we cannot find any justification for such absurd and lenient sentence for an accused found guilty of such magnitude of corruption. It is regrettably lugubrious to observe that the sentence in that case amounted to an atrabilious display of the gravest dereliction of duty imaginable. There existed aggravating factors as apparent from the available evidence at the trial which should have sufficed to aggravate the quantum of punishment as reflected in the sentence. It is consolatory in the interest of justice and the sanctity of the judicial system in Nigeria that the particular judge in question has recently been suspended by the National Judicial Council, pending the completion of on-going investigations into the facts and circumstances surrounding the acutely absurd sentence.
First, on policy grounds, the facts called for deterrent custodial sentence. The accused was a comparatively highly placed public servant, was in a position of trust, had stolen his employer’s[33] money by an elaborate scheme of fraud involving forgery and conspiracy, the total sum stolen was ineffably large. All these were matters of aggravation apparent from the available evidence at the trial which should have weighed on the Court’s mind in the exercise of its discretion at the sentencing stage. Coming at a time when the national economy has been ruined by corrupt public officers, the sentence in this case was bound as it did, to attract wide public attention and disapproval.
Section 309 of the Penal Codeprovides that whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with fine or with both. It is submitted that the Court could have exercised its discretion to mete out the full punishment allowed by the section. The Court could have made an order of both imprisonment and fine. The two years imprisonment order is correct as it is the maximum prison time allowed by the section. But the fine was grossly meagre. It should have extended to a hundred million naira or even more, considering the amount misappropriated. And the accused should have been ordered to serve both the prison term and pay the fine. It is submitted that the price of corruption is extreme discomfort for the convict. That is what the courts should tell the public by its sentences in corruption cases. The decision in EFCC v John Yakubu Yusuf,[34] in effect, declares that “it pays to be corrupt in Nigeria.” This is most ineffably disheartening.
One would wonder whether Taylor C.J. (of blessed memory) who, in Ikpati v C.O.P.,[35]considered a fine of about ten percent of the total sum stolen to be too lenient, would not have had his heart speeding out of his chest by the fine imposed in EFCC v John Yakubu Yusuf,[36]which was much less than one percent of the total sum stolen. Our conclusion is that the sentence in that case amounted to a grossly improper and wrongful exercise of judicial discretion. Indeed, the best befitting appellation for the sentence in that case is gross abuse of judicial discretion.
We realize that the court in this case should not take all the blame. The ineptitude of the prosecution in filing the charge under section 309 of the Penal Code is to blame as well. The charge could have been brought under section 19 of the Independent Corrupt Practices and other Related Offences Commission (ICPC) Act by virtue of section 42 (f) and 46 of the Economic and Financial Crimes Commission (EFCC) Act. The said section 19 of the ICPC Act provides for 5 years imprisonment without option of fine in respect of the offence of using office or position for gratification. It is submitted that the definition of “economic and financial crimes” under section 46 of the EFCC Act is wide enough to cover the offence of using office or position for gratification; and that section 42(f) of the EFCC Act is porous enough to allow the EFCC file a charge under the provisions of the ICPC Act. In the alternative, the charge could have been filed under section 18(1)(c) and (2) of the EFCC Act, which provides that a person who engages in the conversion or transfer of property knowing that such property is derived from any offence under this Act commits an offence under this Act and is liable on conviction to imprisonment for a term not less than two years and not exceeding three years.
It is our belief that the offence created under section 18 (1) (c) of the EFCC Act is similar to that created under section 308 of the Penal Code, which defines criminal misappropriation thus: whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation.
Even much better still, and in our view more appropriately so, the charge could have been filed under section 315 of the Penal Code which provides that whosoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine. Section 311 of the Penal Code defines “criminal breach of trust” thus: whosoever, being any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust or wilfully suffers any other person so to do, commits criminal breach of trust.
It is submitted that the failure of the prosecution in the case of EFCC v John Yakubu Yusuf & Ors.,[37] to advert its mind to the provisions of section 315 of the Penal Code in filing the charge amounted to an indictable ignorance of the law. With due respect the prosecution in that case seems to be atrociously behind the law. Such hypertension-inducing tardiness and incompetence should not be seen to exist in the bar.
As a matter of practice, the courts in Nigeria consider that rape requires a custodial sentence except in very exceptional circumstances. However, in State v Bolivia Osigbeme,[38]we see a very contrary approach. Here, the accused drove up to a motor park in a pick-up van at night and offered to take two stranded girls who had just arrived there to their sister’s address. They were reluctant at first but the accused having assured them of their safety, they entered the vehicle. Instead of taking them to their destination, the accused drove them into a bush and at gunpoint raped each of the girls in turn. He then drove around with the girls for some time, stopped at a bush again, and repeated the same performance with each of the girls. As he drove away from the scene with them, he told them that he was taking them to his house to spend the night and that he would take them to their sister’s address the next morning. They refused. Annoyed at this, the accused then turned the van around and headed for the bush again. The girls jumped out of the van sustaining injuries. The accused drove off with their belongings. He was convicted for rape and stealing. He pleaded for leniency saying his dependants would suffer if he went to prison. His counsel said he was a first offender and asked for mercy and an option of a fine. There was thus nothing in the evidence available at the trial in favour of mitigation other than the purport that the accused was a first offender.[39] In passing sentence the Court said: [40]
The behaviour of the accused is outrageous and disgraceful and should be seriously deprecated by any decent society. I will be failing in my duty if the accused is not made to suffer for his barbaric act. It is obvious that his insatiable appetite for sex made him to commit the offence. However, I have been moved by the passionate plea for leniency made on behalf of the accused by counsel. I sincerely hope that he has learnt his lesson. I will show mercy and give him an option of fine.
For the first offence of rape on the first girl, the Court imposed a fine of six hundred naira or two years imprisonment. For the first offence of rape on the second girl, the Court imposed a fine of four hundred naira or two years imprisonment. For the second offence of rape on each of the girls, the Court cautioned and discharged the accused. With respect, it would appear that the court in this case was retarded in its conception of the magnitude of the offence committed by the accused. It would further appear that the Court in that case was light years behind developments in the law and practice of punishment and sentencing at the relevant time. It is our view that the sentence imposed in this case is hypertension-inducing and absurd. Indeed, it amounted to a mischievous exercise of the wide discretion allowed judges in sentencing convicted offenders. This was a clear case of improper or wrongful exercise of and gross abuse of discretion.
As we have said earlier, rape always calls for custodial sentence except in very rare cases. There was here no mitigating factor other than perhaps the unconvincing purport that the accused was a first offender. On the other hand, the Court failed to take proper account of the strong aggravating factors which attended the commission of the offence – the use of a gun; the infliction of injuries when the girls jumped out of the van;[41] deprivation of liberty for a considerable length of time; the cold breach of trust after assuring the girls of their safety; the fact that a series of rapes was involved; and the fact that such a man as the accused was generally a danger to women if left at large. The accused man’s offence therefore called, not only for a sentence of imprisonment, but for a sentence of a term of imprisonment which would take account of these aggravating factors and thus act as a deterrent to others and indeed to the accused himself who, from the manner of the offence, was a danger to the society. In State v Michael Ayegbeni,[42] the accused, a commercial taxi driver, was sentenced to a term of five years’ imprisonment with hard labour for raping a female passenger causing bleeding.
Equally absurd is the sentence of the trial court in the recent rape case of Posu v State,[43] where the appellants, after having been duly found guilty of a horrific rape of the prosecutrix in which they took turns on her in a most degrading manner, were sentenced to a term of three years’ imprisonment by the trial court. The Supreme Court, frowning at the apparently absurd sentence for such magnitude of crime, held that a light sentence for the offence of rape as in the instant case must never be imposed. According to the apex Court in that case, this may have the unsavoury effect of turning rape into a past-time for flippant youths. The Court took note of the fact that by virtue of the provisions of section 358 of the Criminal Code, a person who commits the offence of rape is liable to imprisonment for life, with or without whipping. In the words of Rhodes-Vivour, JSC, in that case: [44]
The appellants were sentenced to three years in prison (sic). Since there was no cross-appeal, there is nothing that can be done on the strange sentence. The prosecutrix suffered an ordeal that was the stuff of nightmares. A ferocious and indiscriminate attack by two callous, wicked men (sic). To my mind where, as in this case, there is overwhelming compelling evidence that two men took turns to rape a defenseless young girl in degrading and horrific circumstances, I think the appellants should forfeit their place in a decent society for a much longer period. Three years in prison cannot be adequate for such an act (sic).
It is submitted that the tardiness of the prosecution in not filing a cross-appeal against the absurd sentence of the trial court precluded the Supreme Court from exercising its discretion to vary the trial court’s sentence, even though it was clearly minded to so do. It is suggested that counsel should aid the courts in the effecting of a proper exercise of their discretion by making appropriate applications where it is expedient to do so.
6. Improper Exercise of Judicial Discretion in the Examination of Witnesses
The order in which witnesses are produced and examined is specifically assigned to the law of procedure by section 210 of the Evidence Act, 2011.[45] But the taking of oral evidence and the examination of witnesses are provided for in sections 205-247 of the Act. The rule is that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, the discretion of the court.[46] The purport of this provision is that the order in which witnesses are produced and examined shall be governed exclusively by the relevant law of procedure in force for the time being. However, in the absence of any law or rule of practice regulating the matter of the order of production and examination of witnesses, the court shall make use of its discretion.[47] In this regard, it would appear that the Nigerian courts would be satisfied to follow the practice in English courts.[48] In Igwede v R,[49] two witnesses for the accused gave evidence before he, the accused, gave his own evidence. The Court noted that “while there is no statutory rule to prohibit this, we think it desirable that the English practice should be followed, under which if an accused person intends both to give evidence himself and to call witnesses as to fact; his evidence is normally taken before that of his witnesses.”
Subject to this limitation, and in any event in all cases, “the duty of deciding what witnesses shall be called and in what order they should be called is solely a matter for counsel. It is his responsibility and it rests on him and on him alone.”[50] If the trial court prevents counsel from exercising this right, any decision subsequently arrived at, may in a proper case, be vitiated.[51]
By section 211(1) of the Act, when either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant and the court shall admit the evidence if it thinks that fact, if proved, would be relevant and not otherwise. Consequently, section 212 of the Act provides that on the application of either party, or its own motion, the court may order that witnesses on both sides should be kept out of court; but this provision does not extend to the parties themselves, although intended to be called as witnesses or to their respective legal advisers.
Thus, in examination of witnesses, the procedure is that after the attendance in court of a competent witness has been secured and he has been sworn or affirmed, he then proceeds to give his testimony which, subject to certain exceptions, shall be in open court. This requirement for publicity of hearing is enshrined in section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria.[52] However, section 36(4) of the 1999 Constitution allows the court discretion to exclude public hearing in appropriate cases and conduct the hearing in camera. An appropriate case for this purpose may be cases dealing with the trial of juvenile offenders.
The testimony of a witness at any stage of his examination may be in one of these three forms, namely, evidence in examination-in-chief or evidence in cross-examination or evidence in re-examination.[53] Examination-in-chief is examination of a witness by the party who calls him.[54] Cross-examination of the witness is examination by a party other than the party who calls him.[55] This is necessarily examination by the adversary. The “party other than the party” who calls the witness herein must be the adversary;[56] certainly not the court for the court is never a party to the case.[57] An examination by the court can, therefore, never be cross-examination.[58] A re-examination is a second examination of the witness by the party who calls him after he has been cross-examined.[59] We shall not concern ourselves with a detailed discussion of the rules guiding examination of witnesses by counsel, as that would be beyond the scope of this paper. Rather, we shall concentrate on the improper exercise of discretion in the exercise of the court’s power to examine witnesses.
The court has very wide powers of questioning any witness before it.[60] Under section 246(1) of the Act, the court or any other person empowered by law to take evidence may in order to clear up ambiguities or to clarify points which have been left obscure in the evidence given by any witness, ask any question he pleases, in any form, at any time of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or thing; and neither the party nor their agents shall be entitled to make any objection to any such question or order or, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question. The question shall be based upon facts declared by the Act to be relevant, and duly proved.[61]
The above provision does not however authorize the judge to compel any witness to answer any question or to produce a document which such witness would be entitled to refuse to answer or produce under the Act, if the question were asked or documents were called for by the adverse party; nor is the judge empowered thereby to ask any question which it would be improper for any person to ask under section 224 or 225 of the Act nor shall the judge dispense with primary evidence of any document except in the cases excepted in the Act.[62]
From the provision above, it is clear that the courts’ discretion to examine witnesses is considerably enormous, but is yet subject to certain limitations. The principle here seems to be legalis discretio – discretion within the bounds of law. Where the discretion is found to have been exercised beyond the limits allowed by the Act and the necessary implication of the law, the court will be minded to deprecate same on appeal.
In Akinfe v State,[63] the appellant was charged for murder. The prosecution led evidence at the trial to show that the accused added poison in the deceased’s medicine. At the conclusion of the trial, the trial judge in convicting the appellant relied heavily on the conclusions he drew from examining the appellant during trial. The appellant appealed to the Court of Appeal where he contended, inter alia, that the trial judge having abandoned his impartial role as an umpire, had entered into the arena of justice and occasioned a miscarriage of justice. The Court of Appeal dismissed the appeal. The appellant further appealed to the Supreme Court contending that the Court of Appeal was wrong in holding that the trial court had descended into the arena of conflict in one breath and in another holding that there had been no bias on the part of the judge when he had asked questions which prevented the appellant and the appellant’s witnesses from giving evidence their own way. The Supreme Court, in resolving the appeal, considered the provisions of sections 222 and 223 of the old Evidence Act (now sections 246 and 247 of the Act).
It was held that although a trial judge under the relevant sections of the Act above and section 200 of the Criminal Procedure Act, has very wide powers to ask any questions he pleases from any witness including the accused person, the powers of the judges to ask questions under the provisions of the sections are not unlimited. They are limited by the implications of the adversary system which we operate, the absolute need for impartiality in fact and in appearance on the part of the judge and generally the principle of fair hearing enshrined in our Constitution. It is therefore properly recognized that the trial judge can ask questions to get clarifications to answers given to questions asked by one of the parties, so as to clarify any point that may have arisen ex improviso such as where an accused person introduced new issues.
The apex Court further held that it is contrary to the expected impartial role of a judge in our adversary system and the principle of fair hearing for a judge to use the sections as an unbridled license to descend into the arena of conflict and play the role of prosecutor by asking probing and destabilizing questions upon which he later relies to resolve the issues of fact in favour of the prosecution. In this case, it cannot be rightly said that the learned trial judge did not ask too many questions. He did and the questions were very probing and searching and were not even confined to facts which the parties themselves had placed before the court. In acting thus, the image of even-handed justice was destroyed and the likelihood of bias was established.[64]
It is clear from the decision of the Supreme Court above that the trial court in that case abused its discretion to examine witnesses under the law of evidence and procedure. Indeed, the extent of the probing and searching questions asked by the trial court in that case showed a real likelihood of bias and amounted to an improper or wrongful exercise of discretion. It is submitted that where a trial court improperly exercises its discretion to examine witnesses in a trial and relies thereon to arrive at a decision, the proper course of action for the appellate court is quash the decision so reached on the grounds of denial of fair hearing arising from a real likelihood of bias. In Mohammed v The Nigerian Army,[65] it was held by the Court of Appeal that: “A right-minded person will bear in mind…that…the court…has power…to ask any question it pleases in any form, at any time from a witness in order to discover or obtain proper proof of relevant facts. Although, the liberty (discretion) given to the judge … seems extensive, it is limited by the duty of fairness.”
A provision in the Evidence Act, or any enactment, cannot be used as a sanction for depriving a person…of the right to fair hearing granted by the Constitution. Notwithstanding the provisions of section 222 of the Evidence Act,[66] where the intervention of the judge discloses a real likelihood of bias and shows an unmistakable breach of the duty of fairness, the proceedings stand vitiated for lack of fairness. This is why section 222 of the Evidence Act[67] should be used with circumspection and moderation and only where questions are necessary in the interest of justice.”[68]
It is disheartening to note that the improper exercise of the trial courts’ discretion to examine witnesses in a trial has been quite notorious in Nigeria. In the relatively recent case of Amachree v Nigerian Army,[69] the Court of Appeal, frowning at the improper exercise by the trial magistrate in the examination of a witness at the trial, had this to say:
The foregoing is but the tip of the iceberg as regards the nature of the instant (trial) court’s interference albeit obstructively with the court proceeding to subject the appellant to a gruelling session of highly probing and tedious questioning. That the instant (trial) Court Magistrate like every other is allowed a wide latitude under the Act to raise questions as to enable the court clear some doubts and ambiguities in any proceedings is not disputed but it is no license in doing so to descend into the arena and abandon the primary function as the umpire of holding the scales of justice between the contesting parties before it. Any bystander watching the…scenario before the instant (trial) court…would be put to immediate apprehension of the likelihood of bias perpetrated by the court itself. In the instant matter, the questioning not only became so incessant and clearly partial but was directed to filling the factual gaps in the prosecution’s case. The attitude of the court to this kind of unfairness in court proceedings abound.[70]
The trial court’s discretion to examine witnesses is also recognized in both Canada and England.[71] However, the courts in that country have unrelentingly insisted that such discretion must be exercised cautiously in the interest of justice. In Canada, it is recognized that both in civil and criminal cases the court has the right to ask questions to clarify matters and to interrupt if it feels the witness does not understand.[72] In exercising this right the court must be extremely cautious as it does not know as much about the case as does counsel and interference can have the opposite effect of that intended.[73] Thus, it is immaterial that the trial judge, in examining the witness, was actuated by the best of motives. Provided the cumulative of the questions asked puts the impartiality of the judge in question and raises a real likelihood of bias, the appellate court will intervene to quash the decision so reached by the trial court on the grounds of abuse of judicial discretion leading to a denial of fair hearing to a party in the case. In a now-famous dictum, Lord Denning has observed in the English case of Jones v. National Coal Board[74] that:
No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the Board, and to see whether they were all founded or not. Hence, he took them upon himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those were worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries. Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role..[75]
The learned law lord further observed;
Was it not Lord Eldon L.C. who said in a notable passage that truth is best discovered by powerful ‘statements on both sides of the question?’ see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict[76]
In Ontario, Canada, Evans, J.A. explained in the Canadian case of Phillips v Ford Motor Co.[77] that:
There is unquestionably a right to intervene for the purpose of clarification of the evidence, and when the case is highly technical the interventions may be more frequent. No doubt the trial judge was actuated by the highest motives, but his zealous participation, irrespective of motive, unfortunately caused him to transgress and he lost sight of the issues raised by the parties into an investigation on behalf of Canadian motorists.[78]
Consequent upon the foregoing, it may rightly be stated that the court, on appeal, will be readily minded to quash the decision of a trial court where the trial court is found to have improperly exercised its discretion in the examination of a witness at the trial, thereby creating a real likelihood of bias.
However, the court on appeal would not be readily minded to quash the decision of a trial court where it is found that such improper exercise of discretion in the examination of a witness by the trial court did not create a real likelihood of bias, but merely an appearance of unfairness. Furthermore, the trial court must have, in arriving at the decision against which appeal is lodged, relied substantially on the information and opinion derived from the improper examination of the witness at the trial.
It is suggested that in cases of appeals against the judgment of a trial court on grounds of bias arising from an improper or wrongful exercise of discretion by the trial judge in the examination of a witness at the trial, the court on appeal should adopt the standard of the appearance of unfairness test and not the higher standard of real likelihood of bias test. But this exception should be strictly restricted to cases dealing with abuse of discretion by a trial judge in the examination of a witness at a trial.
7. Conclusion
The need for the exercise of some level of discretion by a judge in various stages of judicial proceedings (whether civil or criminal) properly brought before him cannot be readily overruled. However, it is pertinent that in the exercise of such discretion, the court takes heed to avoid a situation where it could be rightly deemed to have exceeded the powers of discretion allowed by the relevant lawor contrary to reason. Where there has been an illegal or unreasonable exercise of discretion by a judge, such exercise of discretion may rightly be regarded as an improper or wrongful exercise of discretion. Indeed the appropriate expression is that the judge has abused his discretion. The effect on appeal in all proper cases is the quashing of the trial court’s decision. The rule is legalis discretio – discretion within the bounds of law.
At the stage of sentencing under the Nigerian criminal justice system, judges are allowed wide latitude of discretion in determining the proper punishment appropriate to the offence for which the offender has been convicted – provided in all cases that the judge does not exceed the maximum scale of punishment allowed by the statute creating the offence. It is true that in a few offences the penalty is fixed by law without any room for the judge to exercise any discretion whatsoever in the matter. An instance is the fixed capital punishment for the offence of murder under section 319(1) of the Criminal Code. But otherwise maximum punishments are rarely imposed, and in most cases a large room for discretion is left with the courts to decide what the exact nature and extent of a sentence will be provided that they do not exceed the maximum punishment prescribed or the limits to their own powers and jurisdiction. They may, for instance, impose a fine even where the maximum punishment is imprisonment.[79] Occasionally, the law may fix a minimum punishment.[80]
The fact is that sentencing is yet to receive adequate attention as an essential and scientific aspect of the administration of criminal justice in Nigeria. Most times, inappropriate sentencing policy has been adopted – for inexplicably lenient or severe sentences have been imposed on offender grievous or minor offences, respectively, as the case may be; and these have gone unchallenged. Although sentencing is a matter of discretion, it cannot be disputed today that the exercise of such discretion must proceed on some rational basis.
It is suggested a strategy for circumventing to a considerable extent the anomalies in sentencing arising from the wide discretion allowed the court in sentencing under the Nigerian criminal justice system is that judges should be required by law to give reasons for the sentence imposed in each particular case.
This is because in Nigeria, at the moment, although a court must give adequate reasons for its decision on a point of law if that decision is to hold good, it is not obliged to give reasons when it sentences a convicted offender. The point is this: if judges were required by law to give reasons for their sentences, this will make them advert their minds to generally recognized guiding principles of punishment and sentencing – and apply them where appropriate. It will also make it more obvious when and how they step out of line. It will then be easier for an appellate court to intervene since error in principle is one of the basis for intervention in sentence.[81] The object of this approach will be to prune the judge’s seemingly unfettered discretion in relation to his powers of sentencing. Also, this same object in mind, the laws creating serious offences should be reviewed to provide not only for maximum punishments therefore, but also for minimum punishments. This will go a long way to prevent judges from exercising their discretion arbitrarily to impose outrageously lenient sentences for grievous offences with grave social implications.[82]
The approach adopted in section 303 of the Penal Code, for instance, is welcome. Under section 303 of the Penal Code, anyone who commits robbery or brigandage with an attempt to cause death or grievous hurt, must be punished with at least seven years’ imprisonment.
It is also suggested, as we had earlier done, that in cases of appeals against the judgment of a trial court on grounds of bias arising from an improper or wrongful exercise of discretion by the trial judge in the examination of a witness at the trial, the court on appeal should adopt the standard of the appearance of unfairness test and not the higher standard of presented by the established real likelihood of bias test. But this exception should be strictly restricted to cases dealing with abuse of discretion by a trial judge in the examination of a witness at a trial.
The provisions of section 246(1) of the Act should be amended to limit the extent of discretion allowed the court in its examination of a witness to ask “…any question it pleases, in any form, at any time of any witness, or of the parties about any fact relevant or irrelevant…and neither the parties nor their agents shall be entitled to make any objection to any such question…without the leave of the court…” It is submitted that the powers of discretion allowed the judge under this provision of the Act is too wide and should be pruned in the interest of justice. It is further submitted that the incessant cases of judicial abuse of discretion we’ve had so far in Nigeria is consequent upon the fact the discretion granted the courts in various areas of law have not been canalized within banks that kept them from overflowing.
The above, it is hoped, may go a long way to obviate the ostensibly notorious occurrence of improper or wrongful exercise of judicial discretion by the Nigerian judge in the areas of sentencing under the criminal justice system and the examination of witnesses by a trial judge under the law of evidence and procedure.
* Helen Uchenna Agu., B.Sc (Nig.), LL.B (Nig.), B.L, LL.M (Nig.), Lecturer, Faculty of Law, University of Nigeria, Enugu Campus. e-mail: helen.agu@unn.edu.ng; helen_aguesq@yahoo.com
[1] Meaning, ‘a judge is the law speaking, see further, U. B. Oguejiofor, Legal Latin Maxim Made Easy (Awka: Mount Carmel Printing & Publ. Ltd. 2009), p. 52.
[2] See the opinions of Obilade on the nature of law in A. O. Obilade., The Nigerian Legal System (Ibadan: Spectrum Books Limited, 1977), pp.3-4.
[3] Per Denton-West, JCA, in Usman v State (2010) 6 NWLR (pt.1190) 454 at 473, paras. B-E.
[4] A lack of discretion on the part of the judge will have the effect of retarding the law and prevent it from growing with the peculiar circumstances of the society which are ever in flux.
[5] The Sovereignty of the Law: Selections from Blackstone’s Commentaries on the Laws of England 27, Gareth Jones Ed., (1973), cited in Margaret Y. K. Woo., “Law and Discretion in the Contemporary Chinese Courts” (1999) Pacific Rim Law & Policy Journal, Vol. 8 No. 3, p. 583.
[6] J. Rawls, A Theory of Justice ,235 (1st Ed. 5th Prtg. 1973), cited in Woo., ibid.
[7] Ibid.
[8] Michael Moore, “A Natural Law Theory of Interpretation,” (1985).58 S. Cal. L. Rev. 27 at 318.
[9] Ibid.
[10] Ibid.
[11] Words and Phrases, vol. 12A (Minnesota, West Publishing Co., 1978), p. 328.
[12] Earl Jowitt., ed., vol.1., The Dictionary of English Law, ( London , Sweet & Maxwell, 1959), p. 222.
[13] Aristotle, The Ethics of Aristotle: The Nicomachean Ethics (J.A.K. Thomson Trans., 1953), p. 146-147., cited in Woo, above note 5 at p. 584.
[14] Ibid., Historically, in the Anglo-American legal tradition, this dichotomy was represented by a dual system of law courts and equity courts. Until later, when these two courts were merged, the law courts followed formalized writs and rules, while the equity courts operated under broader principles of right and justice and looser procedural rules.
[15] Various scholars have categorized discretion differently. See A.S. Atyah, “From Principles to Pragmatism: Changes in the Judicial Process and the Law” 65 IOWA L. Rev. (1981). 1249, 1249-72; Carl E. Schneider, “Discretion and Rules: A Lawyer’s View,” in Keith Hawkins ed ., The Uses of Discretion, cited in Woo, above note 5 at p. 586.
[16] Keith Hawkins, “The Use of Legal Discretion: Perspectives from Law and Social Science”, in Keith Hawkins ed., The Uses Of Discretion 11, 37 (1992), cited in Woo., ibid.
[17] Aristotle, above note 13.
[18] Hawkins, above note 16, cited in Woo, above note 5 at p. 586.
[19] Ibid., In the United States, such discretion is theoretically constrained by the Constitution. Just as arbitrary and intrusive actions by the state are to be constrained by the due process clause and the extensive jurisprudence on substantive due process, the political question doctrine also sets limits on what judges in the United States may do.
[20] In Okonji v Njokanma (1999) 14 NWLR (Pt. 638) 250 S.C., a land case, the Supreme Court, admitting that the trial court had wrongly admitted a crucial piece of evidence in that case, nevertheless upheld the decision of the trial court on the grounds that it was not proved that the reception of that piece of evidence materially affected the decision of the trial court or that the trial court’s decision would have been different if it had not admitted the wrongly admitted piece of evidence.
[21] 127 S.C. 2456 (2007).
[22] 19 S.W.3d 662 (Ky. 2000).
[23] See the American case of Apter v Ross, (2003) 781 N.E.2d 744 (Ind.App.).
[24] C. O. Okonkwo and Naish., Criminal Law in Nigeria, (2nd Edition),(Ibadan: Spectrum Law Publishing, 1980), p. 28.
[25] Ibid., p. 37.
[26] Ibid., at pp. 37-38.
[27] D. A. Thomas, Principles of Sentencing, (London: Heinmann, 1970),p.145.
[28] (1982) Crim. L.R. 135.
[29] IK/9CA/71 (High Court of Lagos, unreported).
[30] Ibid.
[31] Yet unreported, but accessible via The Sun newspaper (Nigeria), issue of 26/02/2013 p.10.
[32] Cap P3, LFN 2004.
[33] The Federal Government of Nigeria acting via the Police Pension Service.
[34] Above note 31.
[35] Above note 29.
[36] Above note 31.
[37] Ibid.
[38] HAU/10c/79 (High Court, Auchi, unreported). See Okonkwo, C.O., “Sentencing for Rape” (1977-1980) 11 Nig. L.J. 121.
[39] Which is quite doubtful (from the point of view of a reasonable man), considering the level of preparation, skill and experience the accused employed in the commission of the offence.
[40] Okonkwo, “Sentencing for Rape,” above note 38 at p. 124.
[41] The accused was responsible for these. See R v Lewis (1970) Crim. L.R. 617; R v Roberts (1971) Cr. App. R. 95.
[42] Charge No.: U/7c/78 (High Court Ubiaja, unreported).
[43] (2011) 2 NWLR (Pt.1213) 393 S.C.
[44] Ibid.
[45] Hereinafter, the Act.
[46] S. 210 of the Act.
[47] T. A., Aguda, The Law of Evidence, (4th Edn.),(Ibadan: Spectrum Books Limited, 1999), p.354.
[48] Ibid.
[49] (1959) 4 FSC 104.
[50] Briscoe v Briscoe (1966) 2 WLR 205; Bakare v ACB Ltd. (1986) 3 NWLR (Pt. 26), p. 47, SC.
[51] Barnes v BPC (Business Forms) Ltd. (1975) 1 WLR 1565 at 1568.
[52] Hereinafter, the 1999 Constitution.
[53] F. Nwadialo., Modern Nigerian Law of Evidence, (2nd Edn.), (Lagos: University of Lagos Press, 1999) p.498.
[54] See s. 214(1) of the Act.
[55] S. 214(2) of the Act.
[56] Nwadialo, above note 53 at p.499.
[57] See Akinfe v State (1988) 3 NWLR (Pt. 85), 729.
[58] Nwadialo, above note 53 at p. 499.
[59] S. 214(3) of the Act.
[60] Nwadialo, above note 53 at p.523.
[61] S. 246(2) of the Act.
[62] S. 246(3), id.
[63] Above note 57.
[64] See A. M. Adebayo, Evidence Act, 2011 Annotated with Cases, 3rd ed. (Lagos: Princeton Publishing Co.2012), pp. 406-407.
[65] (1998) 7 NWLR (Pt. 557) 250.
[66] Now, s.246 of the Act.
[67] Ibid.
[68] Mohammed v The Nigerian Army, ibid.,per Ayoola, JCA, at p. 250, paras. A-C.
[69] (2003) 3 NWLR (Pt.807) 256.
[70] Id.,per Chukwuma-Eneh, JCA, at p.279, paras. B-D; at p.283, paras. D-G.
[71] And indeed, in most common law jurisdictions.
[72] Ron Delisle, Don Stuart & David Tanovich (2004) Evidence Principles and Problems (7th Edn.), (Toronto, Ontario: Thomson Carswell – Thomson Canada Limited), p.477.
[73] Ibid.
[74] (1975) 2 QB 55, 63 (C.A.). For an example of descending into the arena, see R v Rhodes (1981), 59 C.C.C. (2d) 426 (B.C.C.A.).
[75] Ibid.
[76] Ibid.
[77] (1971), 18 D.L.R. (3d) 641, 663 (Ont. C.A.). In another Canadian case, R v Sherry (1995), 45 C.R. (4th) 376 (Ont. C.A.), reversed (1996), 3 C.R. (5th) 314 (S.C.C.) the Canadian Supreme Court overturned a majority ruling that there should be a new trial because the trial had created an appearance of unfairness in asking the Crown to read the perjury sections to a defence witness. We think this decision may readily be followed in Nigeria today as Nigeria now applies the real likelihood of bias test, which is quite apart from the appearance of unfairness test. Indeed, the real likelihood of bias test has now been established beyond contention as the applicable test in Nigeria. See the fairly recent Nigerian Supreme Court-decided case of The Secretary Iwo Central Local Government v Adio (2000) 8 W.R.N. 121.
[78] Phillips v Ford Motor Co., ibid.
[79] See s. 382(1) of the Criminal Procedure Act, Cap C41, LFN 2004.
[80] For instance, under s. 303 of the Penal Code, anyone who commits robbery or brigandage with an attempt to cause death or grievous hurt must be punished with at least seven years imprisonment.
[81] See Adeyeye v State (1968) NMLR 6.
[82] This will prevent a repeat performance of the absurd sentences represented in the cases of EFCC v John Yakubu Yusuf, above note 31; State v Bolivia Osigbeme, above note 37; and Posu v State, above note 42.