MUHAMMED v. STATE
(2021)LCN/14928(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, January 14, 2021
CA/K/179A/C/2018
RATIO
COURT: WHEN IS A COURT COMPETENT TO ADJUDICATE
The law on this point has been graphically captured in the dictum of Bairamian, FJ in the celebrated case of Madukolu Vs. Nkemdilim (1962) N.S.C.C. Vol 2 p. 374 at 379 lines 50-55 and p.380 lines 1-5 where it was held thus:-
“A Court is competent to adjudicate when:
a. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another and
b. The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction, and
c. The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.” PER HUSSEIN MUKHTAR, J.C.A.
PROCESS: EFFECT OF FAILURE TO SERVE PROCESS WHERE REQUIRED
failure to serve process, where service of process is required. It has been held by this Court that such of failure goes to the root of the jurisdiction of the Court and renders nullity proceedings in such cases. See Sken Consult v. Ukey (1981) 7 S.C. 6. PER HUSSEIN MUKHTAR, J.C.A.
JURISDICTION: EFFECT OF A PROCEEDING CONDUCTED WITHOUT JURISDICTION
The question of jurisdiction is not a mere technicality but one that goes to the root of the entire proceedings and unless there is competence, any proceedings however well conducted and decided will be nullity. See Ike Vs. Nzekwe (1975) 2 S.C. 1. And it can be raised at any stage of the proceedings, even on appeal; Swiss Air Vs A.C.B (1971) All NLR 37; Ejiofodomi Vs. Okonkwo (1982) S.C. 74.” PER HUSSEIN MUKHTAR, J.C.A.
CRIMINAL LAW: REQUIREMENTS OF A VALID TRIAL
The failure to obtain leave renders the entire proceedings void ab initio. See Alapa Vs. State (2016) LPELR-41322 (CA), where my learned brother Abiru, JCA observed thus:
“It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi- Whyte, JSC stated that:
‘A valid trial is posited on the fact of a valid arraignment. An arraignment … is calling the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the provisions of Section 215 of the Criminal Procedure Law.’
… Arraignment is not a matter of technicality and it is a very important initial step in the trial of a person on a criminal charge. It is very critical and foundational to the successful prosecution and possible conviction of an accused defendant. A criminal trial anchored on a faulty arraignment process is tantamount to erecting a house on a fault and sandy foundation and it will invariably collapse no matter how well the trial was conducted. Thus, the Courts have held that failure to comply with the conditions for a valid arraignment renders the whole trail a nullity – Kajubo Vs State supra, Yahaya Vs State (2002) 3 NWLR (Pt 754) 29, Okeke Vs State (2003) 15 NWLR (Pt 842) 25 Amala vs State (2004) 12 NWLR (Pt. 7038) 30 Solola vs State (2005) NWLR (Pt 937) 460, Lufadeju Vs Johnson (2007) 8 NWLR (Pt 1037) 535 and Dada Vs State (2013) 2 NWLR (Pt. 1337) 59.”
Section 185(b) of the CPC unequivocally requires that leave of a Judge of the High Court be obtained before a valid charge could be preferred against an accused person. In the instant case, the law was observed in breach and it effectively renders the trial predicated on that emptied charge void ab initio. The proceedings before the lower Court were based on void charge and were therefore tantamount nullity entitling the Appellant to discharge. PER HUSSEIN MUKHTAR, J.C.A.
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Between
HARUNA MUHAMMED APPELANT(S)
And
THE STATE RESPONDENT(S)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Katsina State (hereinafter referred to as “the Court below” or “the lower Court”) delivered by Hon. Justice I. B. Ahmed, in case number KTH/FT/5C/2014, on 13th December, 2017, wherein the Appellant and one other were convicted for the offence of armed robbery and culpable homicide punishable with death. The Appellant and his cohort were both sentenced to death.
The Appellant and one other were jointly arraigned before the lower Court on charges of armed robbery and culpable homicide punishable with death contrary to Sections 1 (2) (b) and 6 (b) of the Robbery and Fire Arms Act and Section 221 of the Penal Code Law respectively. The Appellant pleaded not guilty to the three counts of the charge and immediately thereafter the trial commenced. There was apparently no leave sought for and obtained to prefer the charge in compliance with the Section 185 (b) of the Criminal Procedure Code.
Four witnesses testified for the Respondent and six exhibits tendered; namely, 3 T
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shirts marked Exhibits 1A, 1B & 1C, charms marked Exhibit 3, and confessional statements made by the Appellant in Hausa language and the translated English versions were tendered and admitted in evidence by the Court as Exhibits 4A and 5B & 5A and 5B respectively.
At the end of the trial, the learned trial judge, in a reserved and considered judgment, convicted and sentenced the Appellant to death. The Appellant being disgruntled with that Judgment filed a notice of appeal on 12th March, 2018, predicated on six grounds, from which the following twin issues were distilled for determination (Ibid pages 42-46 of the Record):
1. Whether the lower Court lacked jurisdiction to entertain the matter. (Distilled from Ground 1).
2. Whether the Learned trial Judge was right when His Lordship held that the Prosecution has proved its case beyond reasonable doubt against the Appellant. (Distilled from Grounds 2, 3, 4, 5 and 6).
Arguing on the issue of jurisdiction, the learned counsel for the Appellant J. J. Usman, Esq., contended that the failure of the prosecution to seek and obtain leave to prefer the charge against the Appellant had
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dislodged the jurisdiction of Court below.
It was argued for the Appellant that jurisdiction of Court is critical and extrinsic to adjudication. The law on this point has been graphically captured in the dictum of Bairamian, FJ in the celebrated case of Madukolu Vs. Nkemdilim (1962) N.S.C.C. Vol 2 p. 374 at 379 lines 50-55 and p.380 lines 1-5 where it was held thus:-
“A Court is competent to adjudicate when:
a. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another and
b. The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction, and
c. The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
It was submitted that the instant was not initiated by due process of law for failure of the
3
prosecution to obtain leave to prefer the charge against the Appellant. Thus the conditions enumerated above in Madukolu’s case, were observed in breach in the instant case. This junked the jurisdiction of the Court below in the matter, the fact that no objection was raised throughout the trial notwithstanding. It was submitted for the Appellant that the violation of the mandatory provision of Section 185 of the Criminal Procedure Code had rendered the entire proceedings null and void. The said Section 185 of the Criminal Procedure Code provides thus:-
“185. No person shall be tried by the High Court unless
(a) He has been committed for trial to the High Court in accordance with the provisions of Chapter XVII; or
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or
(c) A change of contempt is preferred against him in accordance with the provisions of Section 314 or Section 315.
The learned counsel for the Appellant further submitted that the jurisdiction of the Court below to entertain, hear and determine the matter was effectively relegated especially since
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the charge was not preferred against the Appellant by the Attorney General. Reference was made to the Supreme Court pronouncement in Bature vs. State (1994) 1 NWLR (PT. 320) 267 at 290 -292 paras G-E, per Ogundare, JSC holding thus:
“No person shall be tried by the High Court unless;
(a) He has been committed for trial to the High Court in accordance with the provisions of Chapter XVII; or
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or
(c) A charge of contempt is preferred against him in accordance with the provisions of Section 314 or Section 315 …
Non-compliance with Section 185 of the Criminal Procedure Code would, in my respectful view, come under the third category stated above by Bairamian FJ. This being so, I find myself unable to accept the submission of the learned DPP that non-compliance with Section 185 is an irregularly curable by Section 382 of the Code which states:
“382. Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered
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on appeal or review on account of any error, omission or irregularity in the complaint, summons warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Criminal Procedure Code unless the Appeal Court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity. “l have examined all the authorities cited and relied upon by the learned DPP. While I accept that these cases are relevant where the breach complained of is a mere irregularity, they do not however, apply where the breach renders the trial a nullity. For example, failure to serve process, where service of process is required. It has been held by this Court that such of failure goes to the root of the jurisdiction of the Court and renders nullity proceedings in such cases. See Sken Consult v. Ukey (1981) 7 S.C. 6. The question of jurisdiction is not a mere technicality but one that goes to the root of the entire proceedings and unless there is competence, any proceedings however well conducted and decided will be nullity. See Ike Vs. Nzekwe (1975) 2 S.C. 1. And
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it can be raised at any stage of the proceedings, even on appeal; Swiss Air Vs A.C.B (1971) All NLR 37; Ejiofodomi Vs. Okonkwo (1982) S.C. 74.”
Adopting the foregoing principle in the case of P.C. James Egigia Vs The State (2013) LPELR – 20754 (CA) in appeal CA/K/420B/C/2008 delivered on Wednesday, the 6th day of March 2013 at p. 12, Aboki, JCA (as he then was) held thus:
“Obtaining the leave to prefer a charge against an accused person before a High Court constitutes a condition precedent which must be fulfilled before the said Court can assume jurisdiction to try the said accused person. Hence in Bature Vs. State (1994) 1 NWLR (Pt.302) 267, the Supreme Court on the effect of the failure of the State to obtain leave before filing a charge against an accused person opined that; “Non-compliance with Section 185 of the CPC would, in my respectful view, come under the third category stated above by Bairamian F.J (that is, the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction). This being so, I find myself unable to accept the
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submission of the learned D.P.P. that non-compliance with Section 185 is an irregularity curable by Section 382 of the code”. See Torri Vs. National Park Service of Nigeria (2009) All FWLR (pt. 495) 1779.”
The learned counsel for the Appellant placed further reliance on the cases of Ohwovoriole Vs. F.G.N. (2003) 2 NWLR (Pt. 803) 176 at 189; Musa Aliyu Yahaya Vs. Federal Republic of Nigeria (2007) LPELR-4563 (CA) at pages 13-14 paras G-F. He urged the Court to resolve issue 1 in favour of the Appellant.
The learned counsel for the Respondent B. F. Abdullahi, Esq (ADPP Ministry of Justice, Katsina State), however argued that the Appellant was properly arraigned in compliance with the applicable law in respect of filling of charges before the Katsina State High Court. He painstakingly reproduced the provision of Section 185 of Criminal Procedure Code (Vol.1 Cap.37 Laws of Katsina State 1991 (Hereinafter referred to as “the CPC”)) thus:
“No person shall be tried by the High Court unless-
(a) a charge is preferred against him; or
(b) a charge of contempt is preferred against him in accordance with the
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provisions of Section 314 or Section 315.”
He argued that Section 185A of the CPC further provides that:-
“On production of a first information report, Magistrate shall –
(a) have jurisdiction to take cognizance; and
(b) remand an accused person to either police or prison custody pending the framing of a charge against him.”
It was submitted for the Respondent that as reproduced above does not require the Respondent to seek and obtain leave of the trial Court before filling charge as erroneously argued by the learned counsel for the Appellant.
It was further submitted for the Respondent that the law cited and authorities relied upon by the appellant are cases decided in other jurisdictions where that particular law applies.
He urged the Court to distinguish between the cases cited by the Appellant’s counsel and the instant case and resolve the first issue in favour of the respondent against the appellant.
It is pertinent that the learned counsel for the Respondent has failed to cite the law governing the procedure for arraignment before the High Court, which is all that issue one is about. He also argued the
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requirement of arraignment when an accused is first arraigned before a Magistrate’s Court without showing how that procedure becomes applicable in the instant case where the Appellant was arraigned directly at the Court below.
In the instant case, the charge dated 23rd December, 2013 was simply filed at the lower Court without filing any application for leave to prefer the charge against the Appellant as required by Section 185 of the CPC. The law requires that an accused shall not be tried by the High Court unless he has been committed for trial to the High Court in accordance with the provisions of Chapter XVII; or a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court.
The Respondent, in the instant case, has not shown that he ever sought for much less obtaining leave of the lower Court before the filing of the charge against the Appellant or that leave to prefer charge supported with proof of evidence has been repealed in Katsina State. If the mandatory requirement for filing of proofs of evidence under Section 185 (b) of the CPC no
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longer applies in Katsina State, the new law must be cited and demonstrated. Moreover, an application for leave is also required underSection 9 (2) of the Robbery and Firearms (Special Provisions) Act. The failure to obtain leave renders the entire proceedings void ab initio. See Alapa Vs. State (2016) LPELR-41322 (CA), where my learned brother Abiru, JCA observed thus:
“It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi- Whyte, JSC stated that:
‘A valid trial is posited on the fact of a valid arraignment. An arraignment … is calling the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the
11
provisions of Section 215 of the Criminal Procedure Law.’
… Arraignment is not a matter of technicality and it is a very important initial step in the trial of a person on a criminal charge. It is very critical and foundational to the successful prosecution and possible conviction of an accused defendant. A criminal trial anchored on a faulty arraignment process is tantamount to erecting a house on a fault and sandy foundation and it will invariably collapse no matter how well the trial was conducted. Thus, the Courts have held that failure to comply with the conditions for a valid arraignment renders the whole trail a nullity – Kajubo Vs State supra, Yahaya Vs State (2002) 3 NWLR (Pt 754) 29, Okeke Vs State (2003) 15 NWLR (Pt 842) 25 Amala vs State (2004) 12 NWLR (Pt. 7038) 30 Solola vs State (2005) NWLR (Pt 937) 460, Lufadeju Vs Johnson (2007) 8 NWLR (Pt 1037) 535 and Dada Vs State (2013) 2 NWLR (Pt. 1337) 59.”
Section 185(b) of the CPC unequivocally requires that leave of a Judge of the High Court be obtained before a valid charge could be preferred against an accused person. In the instant case, the law was observed in breach and it effectively
12
renders the trial predicated on that emptied charge void ab initio. The proceedings before the lower Court were based on void charge and were therefore tantamount nullity entitling the Appellant to discharge. The foregoing analysis focusses my view to resolving issue 1 in favour of the Appellant. This not only scores success for the appeal, it also renders the second issue impertinent and academic.
The appeal has merit and is hereby allowed. The null judgment of the Court below delivered, in case number KTH/FT/5C/2014, on 13th December, 2017 is hereby struck-out. Consequently, the Appellant is discharged.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother HUSSEIN MUKHTAR, JCA. I agree.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in draft the lead judgment as prepared and delivered by my Lord Hussein Mukhtar, JCA with whom I agree in toto that the appeal be allowed. An initiating process is competent and can be acted upon if the conditions precedent to the initiation of that process was first observed. Section 185 of the Criminal Procedure Code, is a provision which provide for the manner by which Criminal trials
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are initiated before the High Court. Failure or non-compliance with the procedure set out in the law, renders the process incompetent. I am in agreement with the lead judgment that the suit commenced against the Appellant, in the absence of leave first sought and obtained at the High Court, was still born. Same is struck out. Appellant is discharged.
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Appearances:
J. USMAN, ESQ., with him, ISIAKA KADIRI, ESQ. For Appellant(s)
F. ABDULLAH, ESQ., (ADPP, MINISTRY OF JUSTICE, KATSINA STATE) For Respondent(s)
