EMMASON v. STATE & ORS (2020)

EMMASON v. STATE & ORS

(2020)LCN/14862(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/YL/221c/2019

RATIO

CRIMINAL PROCEDURE: DUTY OF EVERY ACCUSED PERSON TO BE PRESENT IN COURT DURING THE WHOLE OF HIS TRIAL

What then is the requirement of the law where one accused is absent during a joint trial? By the provision Section 259 of the Criminal Procedure Code Law of Adamawa State there must be an order in writing dispensing with his presence either by suspending the trial against him or by striking out his name. Section 259 of the Criminal Procedure Code Law of Adamawa State (being the procedural law in force at the time of the hearing) provides thus:
“259(1) The Court at any stage of the trial where there are several accused may by order in writing stating the reasons therefore stay the proceedings of the joint trial and may continue the proceedings against each of any of the accused separately.”
In Mokelu vs. Federal Commissioner for Worksand Housing (1976) 1 NMLR 329 at 333, Madarikan, JSC held at page 333 that:
“May” is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. But where the object of the power is to effectuate a legal right, “may” has been construed as compulsory or as imposing an obligatory duty. The principle to be drawn from decided cases on the construction of the word “may’, appears to be quite clear. The word “may” gives a power, and the important question is in what causes, where a judge has a power given by the word “may”, it becomes his duty to exercise it. When a Statute confers a power or authority on a judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly called for. (See MacDougall vs. Patterson (1851) 139E.R. 673).”
Furthermore, in Mohammed v. State (2018) 5 NWLR (Pt.1613) 540 at 56, Paras D-E stated thus:
“On the use of the word “May” in Section 259(1) of the Criminal Procedure Code, there is no doubt that the trial Court does not have option on whether or not to stay proceedings whenever it is clear to the Court that one of the accused persons in a joint trial is not available to stand trial”.
At Pages 573-574 Paras. G-B in Mohammed vs. State (Supra) the Apex Court further held:
“In the case of State vs. Lawal only two of the accused persons were absent on the date when counsel delivered their final addresses and on the date of judgment. The Supreme Court had held that by virtue of their absence at those occasions, the whole of the proceedings and judgment were a nullity and the accused persons who were present had right to challenge the judgment by way of judicial review so the proceedings could quashed.” PER BAYERO, J.C.A.

FAIR HEARING: FUNDAMENTAL PRINCIPLE OF FAIR HEARING

It is a fundamental principle of fair hearing that accused persons jointly standing trial for a criminal offence must be present in Court throughout the period of their trial from arraignment to Judgment; a violation of which renders the trial a nullity. A trial whether objected to or not in the absence of an accused person is a sham and renders the purported trial a nullity, the only exception is where the violent tendencies of the accused may necessitate keeping him out of Court in the interest of the peaceful conduct of the trial.
In State vs. Lawal (2013) 7 NWLR (Pt. 1354) 565 at 586 Paras. F-G the Supreme Court emphatically and unequivocally held that:
“It is a fundamental principle of fair hearing that accused persons standing trial for a criminal offence have to be present in Court throughout the period of their trial a violation of which renders the trial a nullity”.
See also Daniel Adeoye vs. State (1999) 6 NWLR (Pt. 605) 74 where this Court held that:
“A trial whether objected to or not in the absence of an accused person is a sham and renders the purported trial a nullity.”Furthermore, inNgadi vs. F.R.N. (2018) LPELR-43636 (CA) it was held thus:
“The decision by the High Court to take Final Addresses, deliver judgment convicting the 1st Defendant along with the Appellant and sentencing the Defendants for the offences they were tried for, in the absence of the 1st Defendant rendered the entire proceedings in the trial, including the judgment convicting the Defendants and sentence imposed, a nullity. Since the Appellant was jointly tried, convicted and sentenced by the High Court in the same proceedings with the 1st Defendant, the proceedings are liable to be set aside and her conviction and sentence quashed for being a nullity as was decided in the cases of Adeoye vs. State; State v. Lawal; Asakitikpi v. State and Ogujuba v. State (All supra). Section 208 of the ACJL, 2011 mandatorily prescribed that a Defendant shall be present in Court throughout the whole of his trial, and the case of State v. Lawal (Supra) has held that proceedings of a trial include the delivery of judgment and sentence by a trial Court”. PER BAYERO, J.C.A.

ORDER: WHEN IS A RETRIAL ORDER MADE

In the case of Hassan vs. FRN (2016) LPELR-42804 (SC) the Supreme Court held that:-
“A retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure where however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not order of retrial but of a fresh trial.” PER BAYERO, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

SANUSI IBRAHIM EMMASON APPELANT(S)

And

THE STATE 2. ALIYU ARDO 3. SADIQ MIJINYAWA 4. SHUAIBU ABUBAKAR 5. SAIDU ABUBAKAR 6. UMAR MUHAMMED 7. SANI MUSA 8. KABIRU ABDULLAHI RESPONDENT(S)

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Adamawa State High Court in Suit No. ADSY/9C/2017 delivered on 16th November, 2019 by Waziri J. The Appellant with seven others were charged with the offences of Conspiracy and Armed Robbery contrary to Section 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN, 2004. In his plea after the charge was read to the Appellant in English and explained to him in Hausa pleaded not guilty to all the nine counts. The prosecution called 13 witnesses, tendered 7 Exhibits (A-H) and closed its case. The Appellant as DW 13 testified in his defence and called his father as DW 5. The lower Court convicted the Appellant for the offences charged and sentenced him to death by hanging. Dissatisfied with the Judgment, the Appellant filed his original Notice of Appeal on 11/04/2019, the amended Notice of Appeal was filed on 2/06/2020 and deemed on 3/062020, the further amended Notice of Appeal was filed on 16/10/2020 with leave granted on 12/10/2020. The record of Appeal was compiled and transmitted to this Court on

13/11/2019.

The original Appellant’s Brief of argument was filed on 2/06/2020 and deemed as properly filed and served on 3/06/2020. It was however withdrawn and struck out. The Appellant’s amended Brief of argument was filed on 16/10/2020. The Reply Brief was filed on 10/11/2020 but deemed as properly filed and served on 11/11/2020. The 1st Respondent’s Brief was filed on 9/11/2020 but deemed as properly filed and served on 11/11/2020. In the Appellant’s Brief, eight issues are formulated for determination thus:-
1) ”Whether the trial Court was right to have jointly tried and convicted the Appellant, together with the 2nd to 8th Respondents in the absence of the 9th Convict. (Distilled from ground 6)”
2) “Whether the trial Court was right when it relied solely on the confessional statement of the Appellant and that of the co-Convicts to convict the Appellant without proper evaluation to give weight to it. (Distilled from Ground 2)”
3) “Whether the trial Court properly evaluated the evidence adduced by lumping up the evidence adduced without evaluating the weight of evidence available

against the Appellant separately (Distilled from Ground 4)”
4) “Whether in the light of the totality of the evidence adduced and the circumstances of the case, the trial Court was right to convict the Appellant in the absence of a proper identification parade/evidence. (Distilled from Grounds 3 and 7)”
5) “Whether the trial Court was not in error to hold that the Prosecution had proved its case beyond reasonable doubt. (Distilled from Ground 1)”
6) “Whether the trial Court was not wrong to have admitted and given weight to Exhibit E (the Dane Gun) when same was not linked in any way to the case against the Appellant. (Distilled from Ground 9)”
7) “Whether the trial Court was right in holding of the discrepancies in the date of the robbery were not material. (Distilled Ground 8)

On issue one, it was submitted that in any criminal trial, the presence of the Defendant is mandatory -State v. Lawan (2013) 7 NWLR (Pt. 1354) 565 at 586 Paras. F-G and Section 153 of the Criminal Procedure Code Law of Adamawa State (CPC).

That the exceptions where the presence of the accused can be dispensed

with during his trial were highlighted in the case of State v. Lawal (Supra) at Pages 595-596 Paras. G-B as follows:
“… the only known exceptions being where the accused misconducts himself at the trial or is of unsound mind and so incapable of making his defence when the Judge, magistrate or jury as the case may be shall in the first instance investigate the fact of such unsoundness of mind when such investigation shall be held in the absence of the accused or the penalty to be imposed by the Magistrate on the accused where the offence is punishable only by a penalty not exceeding one hundred naira provided that the accused pleads guilty in writing or through his counsel when the Court shall dispense with personal attendance.”

That the Appellant was charged jointly with the 2nd – 9th convicts and on the date of arraignment, 3rd day of April, 2017, the 9th Convict, Abdu Ojulu, was recorded absent. That no explanation was given on the record for this – Page 158 of the Record of Appeal.

That the 9th Convict was absent throughout the hearing and never arraigned as his plea was never taken although the Court went ahead to record

that all accused Persons were present during trial (Page 175 of the Printed record) without stating the position of the 9th Convict who was said to be at large and without arraignment. According to Counsel, the position as found in Section 259 of the C.P.C. is that there must be an order in writing dispensing with his presence either by suspending the trial against him or by striking out his name.

That the proceedings were not suspended against him nor was his name struck out, but was convicted along with the Appellant and sentenced to death in absentia. According to Counsel, the entire proceeding is a nullity as a result of the absence of the 9th Convict – Ngadi vs. F.R.N (2018) LPELR – 43636 (CA). He urged the Court to resolve issue one in favour of the Appellant and against the 1st Respondent. Learned Counsel argued issues 2, 4 and 7 together and submitted that a confessional statement and the words of caution must be recorded in the language which the accused understands, dated and signed; and counter signed by a superior police officer – Kamila vs. State (2018) LPELR – 43603 (SC). That in the instant Appeal, the statement was not recorded in the

language of the Appellant and that there is also no positive evidence to show that the Appellant gave PW13 directives to record his statement.

That the trial Court in the instant appeal, in an attempt to evaluate the confessional statement of the Appellant, failed to consider his evidence. That the Court only recounted the testimonies of PW1- PW 7 and stated that it believed their evidence without more (Pages 295-296 of the record). That the Court did not state how it came to this conclusion.

That it amounts to a breach of the Appellant’s right to fair hearing when the trial Court failed to consider evidence which was placed before it – Tippi vs. Notani (2010) LPELR – 5030 (CA). Counsel further submitted that in the instant Appeal, what the trial Court did was a blanket conclusion against all the Accused Persons with respect to the evidence adduced whether applicable to the Appellant or not. That the trial Court failed to give a proper evaluation which resulted in a perverse conclusion. According to Counsel, the confessional statement of the Appellant was not corroborated and if at all it was, it was only corroborated by unreliable

evidence. That there was nothing outside the confessional statement to show that it was true and the alleged confession was inconsistent with other facts which had been proved at trial. That the Appellant could not have had the opportunity to conspire and actually commit the offence as allegedly stated in the Confessional Statement, since the Appellant, the 4th Respondent and the remaining convicts denied knowing each other prior to their arrest.

That DW2 testified that the 4th Respondent was at home on the night of the incidence (Page 226 of the record) but that the trial Court failed to give this evidence any consideration.

That there are contradictions on the date of the alleged robbery as stated by the Prosecution witnesses. That PW1 – PW4 gave 22/11/2015 as the date of the robbery, while PW5-PW7 said they were robbed on 25/11/2015. That the 2nd and 4th Respondents were arrested on 23/11/2015, two days before 25/11/2015 (the date of robbery), as per the testimonies of PW1, PW2, PW3, DW2 (Page 226 of the record) and Exhibits A and B support this fact. That it is therefore practically impossible for the Appellant to have participated in a

robbery which occurred on 25/11/2015 with people who were arrested before them.

That Exhibit F purportedly states that the Appellant was with the other convicts including those arrested on 23/11/2015 throughout the robberies which renders the statements in it improbable in the light of these contradictions. That Exhibit G states that they planned for the robbery on 24/11/2015 and executed it on 25/11/2015 and this is contradictory to Exhibit H the statement of the Appellants.

Counsel further submitted that a material contradiction in the confessional statement of the Appellant is that they shared the proceeds of crime immediately after the robbery, while in Exhibits A and B (Page 142 of the Printed record) it is stated that they were yet to share the proceeds before the 2nd and 4th Respondents were arrested.

That the trial Court also erred in convicting the Appellant of the offence of criminal conspiracy solely on his retracted confessional statement without looking for any independent evidence outside it (Page 293 of the record); and that the trial Court also relied on the confessional statements of co-accused as corroboration which is not in

tandem with the position of the law – State v. Gwangwan (2015) LPELR-24837 (SC). He urged the Court to resolve issues 2, 4 and 7 in favour of the Appellant and against the 1st Respondent. Learned Counsel argued issues 5 and 6 together and submitted that one of the elements to be proved in a charge of armed robbery is that the accused person is among those that participated in the armed robbery, hence, the identification parade to identify the accused is always in issue – Onukwube vs. State (2018) LPELR – 46071 (CA).

That in the instant appeal it is clear that the Appellant was not arrested at the scene of the crime neither was his name mentioned by any of the prosecution witnesses which made it vital for an identification parade to be conducted. That according to PW13, it was the 3rd accused person, Shuaibu Abubakar that led them to the arrest of the Appellant (Page 221 of the record); and that this piece of evidence was debunked and controverted by DW9, the 3rd accused person (Page 236 of the record) when he said he does not know the Appellant before his arraignment.

According to Counsel, it is therefore not possible for the 3rd accused person

Shuaibu Abubakar to have led the police to arrest someone he does not know. That in the instant Appeal, rather than perform a proper identification parade asking the victims to identify the suspect, the suspect was asked to identify his victim, as shown by the evidence of PW7 at page 185 of the record – Bolu vs. State (2018) 3 NWLR (1607) 410 SC 432 Paras. A-D. That PW6 testified that he could not identify any of the accused persons but turned around and said he recognized only one as shown in his evidence at Page 183 of the record.

According to Counsel, the trial Court erred at Page 296 when it stated that PW6 identified one of the accused persons which is at variance with the evidence on the printed record – Doripolo vs. State (2012) LPELR-15415 (CA) and the case of Orisa vs. State (2018) 11 NWLR (Pt. 1631) 453 at 472.

Learned Counsel further submitted that in his extra judicial statement (Page 35 of the record), PW7 made it clear that he saw one Farouk during the robbery but that from the charge sheet, Farouk is not one of the persons charged, but was arrested and taken to the police station. That the evidence that one Farouk was identified during

the robbery and identified at the police station by PW7 is an admission that the said Farouk was the one engaged in the robbery and not the Appellant.

That the failure of the trial Court to consider the contradictions in the evidence of the prosecution witnesses, led to miscarriage of justice.

According to Counsel, the Prosecution tendered Exhibit E through PW11 as proof of one of the weapons used in the robbery and which was allegedly recovered from 4th Accused Person; but that they failed to prove that the exhibit was recovered from the 4th accused and same was not linked to the charge against the Appellant.

That although PW13 testified that he was one of those that arrested the 4th Accused and did a search in his house and recovered a Dane gun with live cartridge, he did not identify exhibit E which was already in evidence as the weapon he recovered for the simple reason that no dane gun was in fact recovered and what was tendered had no relationship with the case. Learned Appellant’s Counsel urged the Court to resolve issues 5, 6 and 7 in favour of the Appellant, allow the Appeal, set aside the Judgment of the lower Court and discharge

and acquit the Appellant.

In the Respondents’ Brief, a sole issue is formulated for determination, thus:-
“Whether the prosecution have proved their case against the Appellant to warrant his conviction and sentence for the offences of conspiracy to commit armed robbery and armed robbery before the trial Court (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the further amended Notice and Grounds of Appeal).”

Counsel submitted that on the 3rd day of April, 2017 the Appellant alongside the 2nd – 8th Respondents were arraigned before the High Court of Justice Yola and their pleas were taken while the 9th accused person was at large – Page 158 of the record of appeal. According to Counsel, all the eight accused persons that were arraigned before the lower Court have been present throughout the trial. That there is nowhere in the record of Appeal that a judicial pronouncement of guilt, sentence and conviction was made against the 9th accused person by the lower Court. He urged the Court to resolve issue 1 in favour of the 1stRespondent.

According to Counsel, the confessional statement of the Appellant has fulfilled the requirements

for its admissibility -Kamila vs. State (2018) 8 NWLR (Pt.1621) SC 252 At 257 Ratio 6. According to Counsel, when the prosecution sought to tender the confessional statement of the Appellant, he did not object to its voluntariness neither did he deny (retract) it – Page 222 of the record of appeal. That a trial Court is empowered to convict an accused person on his confessional statement alone, once it is convinced that the confession was voluntary. See the case of Kamila vs. State (Supra).

According to Counsel, the trial judge has evaluated all the evidence placed before him before he convicted the Appellant and that the testimonies of PW1 to PW13 corroborated the contents of exhibit H -Pages 175 to 176.

That a careful perusal of the testimonies of PW1, PW5, PW13 & Exhibit H makes it aptly clear that they all point at the robbery executed by the Appellant alongside his accomplice. Counsel further submitted that mere discrepancies in the evidence of the witnesses called by the Respondents at the trial Court which is not material to the fact of the case will not render the Court to reject such testimony; and that the only circumstance in which a

Court of law will consider evidence as contradictory is when it affirms the opposite of what the other statement has stated – Ayinde vs. State (2019) EJSC (Vol. 120) 95 Paras. C – D.

Counsel further submitted that the discrepancies in the dates of the commission of the offences are not fatal and that the Appellant did not at any point in time throughout the course of trial retract his confessional statement. That the Appellant in his confessional statement (Exhibit H) clearly admitted to have conspired with some of the Respondents in committing the offences.

According to Counsel, it is not mandatory for the prosecution to tender items recovered from the crime scene – Chukunyere vs. State (2018) 9 NWLR (Pt.1624) SC 249 at 254 Ratio 6.

That where an accused person was not arrested at the scene of the crime, an identification parade becomes necessary and should be conducted; but that in the instant case, identification parade is not necessary because the Appellant alongside his accomplice identified PW7 as their victim – Page 185 of the record of appeal.

That the essence of tendering the dane gun is to show that weapon was used in the

execution of the robbery by the Appellant alongside his co-accused and was recovered during the course of investigation. He urged the Court to dismiss the Appeal and affirm the judgment of the lower Court.

In the Reply Brief, it was submitted that the 1st Respondent submitted that the 9th Defendant was neither charged, tried, convicted and sentenced together with the Appellant; that this is at variance with the printed record of appeal. That the absence of the 9th accused person was only recorded twice and thereafter he was recorded present when in fact he was not present. According to Counsel, this is similar to the facts of the case in State v. Lawal (supra) which the 1st Respondent laboured to distinguish, albeit, unsuccessfully.

That at Page 300 of the Printed record, the lower Court sentenced all the accused persons on record, including the 9th accused when it held thus: “In the light of the above all the convicts are sentenced to death by being hanged by the neck…” According to Counsel, the Appellant in the instant appeal properly retracted his confessional statement and the trial Court failed to take this fact into cognizance and

consequently failed to subject the confessional statement to proper evaluation.

DETERMINATION OF THE APPEAL
The issue that calls for determination in this Appeal in my humble view is:
“Whether the trial Court was right to have jointly tried and convicted the Appellant, together with the 2nd to 8th Respondents in the absence of the 9th Convict. (Distilled from ground 6).”

Section 153 of the Criminal Procedure Code Law of Adamawa State (CPC) is as follows:
“Every accused person shall, subject to the provisions of Section 154, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings of otherwise as to render their continuance in his presence impracticable.”
The Appellant was charged jointly with the 2nd – 9th convicts. The Printed record at Page 158 shows that on the day of arraignment, 3rd day of April, 2017, the 9th Convict, Abdu Ojulu, was recorded absent by the lower Court, however no explanation was given on the record for his absence. The 9th convict was never arraigned as such his plea was not taken (See Pages 158-163 of the Printed record) and did

not appear before the lower Court to enter his defence. On 16th January 2019, when the lower Court delivered Judgment, at allocutos stage, the record shows that the 9th convict was not in Court, nor was he represented by Counsel (Page 299 of the Record). The lower Court stated that it has considered the plea of mitigation in the allocutos of learned Counsel of the 1st to 4th, 6th, 7th and 8th convicts as well as the one made by the 5th convict (Pages 299-300 of the Record); but did not state that it had considered the plea of mitigation of the 9th convict. This confirms that the 9th convict was absent on the day of judgement. The lower Court however went ahead and convicted all the accused persons including the 9th convict who was not in Court to death in all the nine (9) counts.
What then is the requirement of the law where one accused is absent during a joint trial? By the provision Section 259 of the Criminal Procedure Code Law of Adamawa State there must be an order in writing dispensing with his presence either by suspending the trial against him or by striking out his name. Section 259 of the Criminal Procedure Code Law of Adamawa State (being the

procedural law in force at the time of the hearing) provides thus:
“259(1) The Court at any stage of the trial where there are several accused may by order in writing stating the reasons therefore stay the proceedings of the joint trial and may continue the proceedings against each of any of the accused separately.”
In Mokelu vs. Federal Commissioner for Worksand Housing (1976) 1 NMLR 329 at 333, Madarikan, JSC held at page 333 that:
“May” is an enabling or permissive word. In that sense, it imposes or gives a discretionary or enabling power. But where the object of the power is to effectuate a legal right, “may” has been construed as compulsory or as imposing an obligatory duty. The principle to be drawn from decided cases on the construction of the word “may’, appears to be quite clear. The word “may” gives a power, and the important question is in what causes, where a judge has a power given by the word “may”, it becomes his duty to exercise it. When a Statute confers a power or authority on a judge to act in a certain case, it is imperative on him to exercise the power or authority when the case arises and its exercise is duly

called for. (See MacDougall vs. Patterson (1851) 139E.R. 673).”
Furthermore, in Mohammed v. State (2018) 5 NWLR (Pt.1613) 540 at 56, Paras D-E stated thus:
“On the use of the word “May” in Section 259(1) of the Criminal Procedure Code, there is no doubt that the trial Court does not have option on whether or not to stay proceedings whenever it is clear to the Court that one of the accused persons in a joint trial is not available to stand trial”.
At Pages 573-574 Paras. G-B in Mohammed vs. State (Supra) the Apex Court further held:
“In the case of State vs. Lawal only two of the accused persons were absent on the date when counsel delivered their final addresses and on the date of judgment. The Supreme Court had held that by virtue of their absence at those occasions, the whole of the proceedings and judgment were a nullity and the accused persons who were present had right to challenge the judgment by way of judicial review so the proceedings could quashed.”
In the instant Appeal, the 9th convict was tried and convicted along with the Appellant and sentenced to death in absentia. It is a

fundamental principle of fair hearing that accused persons jointly standing trial for a criminal offence must be present in Court throughout the period of their trial from arraignment to Judgment; a violation of which renders the trial a nullity. A trial whether objected to or not in the absence of an accused person is a sham and renders the purported trial a nullity, the only exception is where the violent tendencies of the accused may necessitate keeping him out of Court in the interest of the peaceful conduct of the trial.
In State vs. Lawal (2013) 7 NWLR (Pt. 1354) 565 at 586 Paras. F-G the Supreme Court emphatically and unequivocally held that:
“It is a fundamental principle of fair hearing that accused persons standing trial for a criminal offence have to be present in Court throughout the period of their trial a violation of which renders the trial a nullity”.
See also Daniel Adeoye vs. State (1999) 6 NWLR (Pt. 605) 74 where this Court held that:
“A trial whether objected to or not in the absence of an accused person is a sham and renders the purported trial a nullity.”Furthermore, inNgadi vs. F.R.N. (2018)

LPELR-43636 (CA) it was held thus:
“The decision by the High Court to take Final Addresses, deliver judgment convicting the 1st Defendant along with the Appellant and sentencing the Defendants for the offences they were tried for, in the absence of the 1st Defendant rendered the entire proceedings in the trial, including the judgment convicting the Defendants and sentence imposed, a nullity. Since the Appellant was jointly tried, convicted and sentenced by the High Court in the same proceedings with the 1st Defendant, the proceedings are liable to be set aside and her conviction and sentence quashed for being a nullity as was decided in the cases of Adeoye vs. State; State v. Lawal; Asakitikpi v. State and Ogujuba v. State (All supra). Section 208 of the ACJL, 2011 mandatorily prescribed that a Defendant shall be present in Court throughout the whole of his trial, and the case of State v. Lawal (Supra) has held that proceedings of a trial include the delivery of judgment and sentence by a trial Court”.
The trial conducted by the lower Court in the absence of the 9th convict who was tried, convicted and sentenced to death in absentia is

therefore a nullity. The sole issue is therefore resolved in favour of the Appellant and against the Respondent. In the case of Hassan vs. FRN (2016) LPELR-42804 (SC) the Supreme Court held that:-
“A retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure where however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not order of retrial but of a fresh trial.”
In the instant Appeal, since I have declared the trial conducted by the lower Court a nullity, the case is hereby remitted back to the Chief Judge of Adamawa State to re-assign it to a Judge of the State High Court other than Waziri J for a fresh trial.

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA.

Learned counsel for the 1st Respondent did not even attempt to show that there was

compliance with Section 259(1) of the Criminal Procedure Code of Adamawa State which required the Court below to stay proceedings in respect of the 9th convict who was absent throughout the trial. Failure to comply with Section 259(1) of the Criminal Procedure Code of Adamawa State thereby rendered the entire trial a nullity. The non-compliance with the above provision of the law undoubtedly warrants an order of retrial.

For the above reason and the more detailed reasons contained in the lead judgment, I too declare the trial in this matter a nullity and order that the case be remitted back to Chief Judge of Adamawa State for re-assignment to another Judge other than Waziri J to be heard afresh.

Appearances:

Chief L. D. Nzadon, Esq. with him Abubakar Sa’ad Esq., V. G. Abasiodiong, Esq. and T. J. Ojo, Esq. For Appellant(s)

A. Waya, Senior State Counsel I, with him D.O. Kulthu, State counsel I, Ministry of Justice, Yola Adamawa For Respondent(s)