KABIRU SHEHU v. THE STATE
(2018)LCN/12189(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/39C/2018
RATIO
APPEAL: FAILURE TO FILE LEAVE OF APPEAL
“The consequence of a failure to obtain the necessary leave is stated in a number of cases. See the cases of MUHAMMED vs. THE STATE (2014) LPELR- 24623; BATURE vs. STATE (1994) 1 NWLR (PT. 320) 267; EGIGIA vs. THE STATE (2013) LPELR-20754. The settled position of the law is that the leave of High Court to prefer a charge is a condition precedent which must be fulfilled before the said Court can assume jurisdiction to try the said accused person. Therefore noncompliance with the provision of Section 185(b) of the CPC is to render the entire proceedings a nullity. On the question of the alleged denial of the Appellant’s right to fair hearing as it relates to the non issuance of a proof of evidence to contain the list of witnesses to be called, learned Appellant’s Counsel cited the case of OKOYE & ORS vs. C.O.P (2015) LPELR 24675.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
KABIRU SHEHU Appellant(s)
AND
THE STATE Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Kebbi State sitting at Birnin Kebbi Judicial Division Coram: E. A. KARATU, J delivered on the 27th day of November, 2017 wherein the Court below convicted and sentenced the Appellant to death by hanging for the offences of Conspiracy and Armed Robbery punishable under Section 6(b), Section 1 (2) (a) & (b) of the Robbery and Firearm (Special Provisions) Act Cap R11, LFN 2004.
The brief facts of this case is that sometimes in 2012, one Alhassan Abdullahi and another who escaped the dragnet of the Nigerian Police at the time one Lawali Danyauri carried out a robbery operation in Jega, Kebbi State and in which they dispossessed a man of his motor cycle. While Alhassan Abdulahi faced his trial and was convicted on the 10-10- 2016, Lawali Dan Yauri also known as Kabiru Shehu who escaped police arrest remained at large. In the Course of the convicted Alhassan Abdullahi serving his term, he ran into his former gang member in prison and in connection with the theft of another motor-cycle as a result of which he was charged, arraigned and tried before a Chief Magistrate in Kebbi State and who sentenced him to a term of imprisonment. The said Alhassan Abdullani brought this to the notice of the Prison Officers who in turn alerted the Prosecution.
Upon his being arraigned under Charge No: KB/HC/RF/12/2015 to face his trial, the Appellant objected to being tried as he denied being the run-away Lawali Dan Yauri who was wanted for the role he played and which led to the said Charge No: KB/HC/RF/12/2015. The Appellant also sought for the services of a Counsel from the Legal Aid Department and this led to the adjournment of the case to enable the Prosecution call evidence to ascertain the identity of the Appellant. In doing this, the Prosecution called the victim of the motor-cycle theft, one Umaru Dikko who gave evidence as the PW1. In his evidence to the Court he testified that he identified the 1st Accused person, the said Alhassan Abdullahi and also identified the Appellant as the duo who pulled out knives on the fateful day and dispossessed him of motor-cycle.
The Appellant was arraigned for his role in the motor-cycle theft saga in 2012 in Charge No: KB/HC/RF/12/2015.
In the course of trial, three (3) witnesses testified for the Prosecution and at the end of the trial, the Appellant was convicted of the offences charged and sentenced him to death by hanging. Dissatisfied with the Judgment of the Court below, the Appellant has appealed to this Court vide a Notice of Appeal filed on the 19-12-2017. There are seven (7) grounds of Appealed filed.
ISSUES FOR DETERMINATION;
There are three (3) issues nominated for the determination of this Appeal by the Appellant thus;
1. Whether the trial Court granted leave to the Respondent to prefer any charge against the Appellant for which the trial Court can have the competence to arraigned and adjudicate on. (Grounds 1, 2, and 3)
2. Whether the trial Court’s acceptance of the evidence of PW1, PW2 and PW3 in convicting the appellant did not occasioned a lack of fair hearing on the appellant. (Ground 4 and 7).
3. Whether the trial Court has the Jurisdiction to investigate the identity of the Appellant. (Ground 5)
On the part of the Respondent, the issues nominated by the Appellant were adopted and it is in respect of these issues the learned Counsel for both sides addressed Court extensively and cited a number of decided authorities for the consideration of this Court. The Appellant?s brief of Argument filed on the 9-3-2018, was settled by HUSSEINI ZAKARIYAU ESQ., while the Respondent?s brief of Argument was filed on the 16-4- 2018. The Appellant’s Reply Brief was filed on the 22-10-2018 and deemed filed same date settled by HUSSEINI ZAKARIYAU ESQ. At the hearing of the Appeal on the 22-10-2018 learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the trial Court granted leave to the Respondent to prefer any charge against the Appellant for which the trial Court can have the competence to arraigned and adjudicate on. (Ground 1, 2, and 3)
In arguing this issue, learned Appellant’s Counsel drew attention of this Court to Section 185 (b) of the CPC which provides as follows;
“No person shall be tried by the High Court unless-
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court”.
Learned Counsel also drew attention to the record of appeal before Court and pointed out that the charge against the Appellant is as contained in the record. (See page 1 – 2 of the record of appeal). The submission of Counsel is that there was nothing in the record of appeal before this Court that suggests that the Kebbi State High Court granted leave to the Respondent to prefer any charge against the Appellant pursuant to Section 185 (b) of the CPC. (See page 3-7 of the record of appeal).
Learned Counsel also contended that there is no proof from the records that the Appellant was arraigned upon any charge filed before the Court below. According to Counsel, a careful perusal of the charge sheet before the trial Court shall reveal that the Appellant’s name was never mentioned on the charge sheet. (See page 1-2 of the record of appeal)
Counsel contended that the Appellant having not been charged on any charge sheet before the Court below; particularly when the High Court did not grant leave to prefer any charges against him; that the trial Court wrongly assumed jurisdiction on the Appellant and he urged this Court to so hold and resolve this issue in favour of the Appellant. Counsel cited the case of AKPIRI vs. STATE (1992) LPELR-1179 (SC). Counsel submitted that in the instant case, the Appellant was not arraigned upon any charge by the Respondent. (See page 1-2 of the record of appeal). Counsel said that the trial Court merely read a charge which does not belong to the Appellant and hanged same on the Appellant. Counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO:
Whether the trial Court’s acceptance of the evidence of PW1, PW2 and PW3 in convicting the Appellant did not occasion a lack of fair hearing on the Appellant? (Grounds 4 and 7)
In arguing this issue, learned Counsel once again drew Court?s attention to Section 36 (6)(b) of the 1999 Constitution of the Federal Republic of Nigeria dealing with the question of the right to fair hearing. As far as Counsel is concerned the Appellant was denied an opportunity of a right of fair hearing as he was neither served any charge sheet in the name of the Appellant nor was he served any proofs of evidence intended to be used against him; the list of witnesses to be called at the trial and so on. In consequence of this, Counsel submitted that it is against the interest of fair hearing enshrined for the benefit of the Appellant in the Constitution of Nigeria and Counsel urged this Court to so hold.
On the proper interpretation of the Section 36 (6)(b) of the Constitution, 1999 as Amended, Counsel cited the case of CHIDI AKABOGU vs. THE STATE (2016) LPELR – 40929 (CA)
“Section 36(6) (a) & (b) provide as follows: Every person who is charged with a criminal offence shall be entitled to (a) Be informed promptly in the language that he understands and in detail of the nature of the offence; (b) Be given adequate time and facilities for the preparation of his defence. I am humbly of the strong opinion that any person charged whether summarily or by information to face criminal charges at the High Court is entitled as provided by the Constitution to details of the offence including the proofs of evidence by the police in order to facilitate his defence to the charge. See Olabode Vs. The State (2009) 11 NWLR Pt. 1152 Pg. 254 at 258, Adeniyi v The State (2001) 25 WRN Pg. 117 at 120”.
See also the Supreme Court decision in EBELE OKOYE & ORS vs. COMMISSIONER OF POLICE & ORS (2015) LPELR – 24675 (SC). Counsel urged this Court to resolve this issue in favour of the Appellant.
RESPONDENT:
ISSUE ONE:
The submission of learned Counsel is that the Respondent was granted the leave of Court to prefer a charge against the Appellant and that the Application for leave to prefer charge in accordance with Section 185 (b) of the CPC was made by way of ex-parte Application and that this was granted authorizing the prosecution to prefer charges against the Appellant together with other accused persons who were earlier convicted and that the charge was read to the Appellant and he said that he understood the charge before entering his pleas of Not Guilty.
The argument of Counsel is that it is clear from the records that the charges were read to the Appellant as contained in the record (See pages 3 and 4 of the record of appeal). Counsel stated that after obtaining the pleas of the Appellant upon his arraignment, the matter was adjourned at his instance to enable him speak to his relative so as to secure the services of a lawyer for him. See page 4 of the record of Appeal. Counsel urged this Court to resolve this issue in favour of the Respondent.
ISSUES TWO & THREE:
It is important to state here that although learned Counsel obtained the leave of this Court to argue issues two and three together, I failed to see how his arguments are in any way related directly or even remotely to the issues argued by learned Appellant’s Counsel in his issues two and three. It would be recalled that what the learned Appellant’s Counsel had argued in his issue two, is the question of the alleged denial of the rights of the Appellant to a fair hearing under Section 36 (6)(b) of the 1999 Constitution of the Federal Republic of Nigeria. I still do not know how this relates in any way to the issue of calling any particular number of witnesses which learned Respondent’s had wasted all the time and space arguing about in his Respondent’s Brief under issues two and three.
RESOLUTION OF APPEAL
The first issue nominated for the determination of this Appeal deals with the question of whether the trial Court granted leave to the Respondent to prefer any charges against the Appellant so as to confer the necessary competence and jurisdiction on the trial Court before the Appellant could be arraigned in Court. The contention of Appellant?s Counsel is that having perused the records, there is no where it has been shown that any such leave had been obtained prior to the arraignment of Appellant in Court. Counsel drew attention of this Court to Section 185 (b) of the CPC which provides as follows;
“No person shall be tried by the High Court unless-
(b) A charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court”.
A careful but rather detailed examination of the record of Appeal shows that at page one (1) of the printed record, a Suit No: KB/HC/RF/12/2015 involving a Criminal Complaint between the State and two accused persons, namely; 1. Alhassan Abdullahi (Alias Buzu) and 2. Lawal Dan Yauri (now at Large) containing two Counts were registered at the High Court of Justice of Kebbi State for purposes of trial before the Court.
In his response learned Respondent’s Counsel submitted that the necessary leave of Court was obtained when the Respondent was granted the leave of Court to prefer charges against the Accused person and that the Application for leave to prefer charges in accordance with Section 185 (b) of the CPC was made by way of an ex-parte Application and that this was granted authorizing the prosecution to prefer the necessary charges against the Appellant together with one other accused person, ostensibly the Appellant herein.
However, the question that should be addressed at this point is whether it would be proper to assume that the necessary leave to prefer charges in accordance with Section 185 (b) of the CPC was sought and obtained by the Respondent just because learned Counsel for the Respondent has said so? The settled position of the law is that the address of Counsel, no matter how brilliantly delivered, whether contained in a brief of argument or not can never take the place of evidence. See the case of ODUWOLE vs. WEST (2010) LPELR-2263 SC, where the apex Court per OGBUAGU, JSC had this to say on the subject;
‘It is now firmly settled that pleadings and forensic eloquence of a brilliant lawyer, do not constitute evidence’.
In the case of U.B.N. PLC vs AYODARE & SONS (NIG) LTD (2007) LPELR-3391 SC the apex Court per ONNOGHEN, JSC (now CJN) had this to say:
‘It is also settled law that address of Counsel however brilliant, cannot take the place of evidence particularly where there is no evidence as in the instant case in support of the submission.’
It is important to note that in nominating this issue, and addressing Court upon it, what the Appellant’s Counsel had to draw Court’s attention to are the printed records compiled and transmitted to Court. The Appellant therefore, having presumably and diligently placed before the Court all relevant materials in the case and has, in arguing the Appeal alleged that a fundamental precedent in the process of arraignment of the Appellant was not complied with, the kind of response this Court had expected of the Respondent was to have compiled and transmitted a Supplementary Record of its own.
A Supplementary Record, the nature of which shall have the motion ex-parte for leave to prefer charges along with the enrolled order of Court pasted along with the lower Court’s Order granting the Respondent the Court’s leave to prefer charges against the Appellant. The issues of the lower Court?s leave pursuant to Section 185(b) of the CPC, having become a material and vital issue in this Appeal, it behooves the Respondent to have compiled and transmitted a Supplementary on the issue more so when the facts of whether the Court’s leave to prefer the charges against the Appellant as an accused person, are clearly within the knowledge of the Respondents only. The inability of the Respondent therefore in satisfying this Court that the appropriate leave of Court was obtained clearly puts the Respondent’s case in dire straits.
The consequence of a failure to obtain the necessary leave is stated in a number of cases. See the cases of MUHAMMED vs. THE STATE (2014) LPELR- 24623; BATURE vs. STATE (1994) 1 NWLR (PT. 320) 267; EGIGIA vs. THE STATE (2013) LPELR-20754. The settled position of the law is that the leave of High Court to prefer a charge is a condition precedent which must be fulfilled before the said Court can assume jurisdiction to try the said accused person. Therefore noncompliance with the provision of Section 185(b) of the CPC is to render the entire proceedings a nullity.
On the question of the alleged denial of the Appellant’s right to fair hearing as it relates to the non issuance of a proof of evidence to contain the list of witnesses to be called, learned Appellant’s Counsel cited the case of OKOYE & ORS vs. C.O.P (2015) LPELR 24675.
Once again, a close examination of the printed records show clearly at pages 1 to 2 that there were no proofs of evidence filed and that the list of prosecution witnesses and their extra-judicial statements intended to be used against the Appellant as an Accused person are clearly absent and were probably not served on him as he claimed. I cannot therefore help but be in agreement with learned Appellant’s Counsel on the issue. This issue is also resolved against Respondent. Arising from the foregoing, the Appeal succeeds. However, rather than discharging and acquitting the Appellant, this Court shall order a trial de novo so long as the trial is declared a nullity on failure of the Respondent to obtain the necessary leave of Court and also upon the establishment of a violation of the Appellant’s right to a fair-hearing.
To this end, the case file is hereby sent back to the Chief Judge of the High Court of Kebbi State for a trial de novo before another judge of his choice.
AMINA AUDI WAMBAI, J.C.A.: My learned brother, FREDERICK O. OHO obliged me a draft copy of the Judgment just delivered. I am in complete agreement with the reasoning and conclusion that the appeal has merit. The law is trite that proper arraignment is essential to the competence of a criminal trial and any substantial defect renders the whole proceedings a nullity. Where as in the case at hand the mandatory requirement of seeking leave to prefer a charge against an accused person is not sought and obtained, the omission is not a mere irregularity but intrinsic to the adjudicatory competence of the Court.
In the case at hand, there is nothing on the record to show that the mandatory leave of the lower Court was sought and obtained or that the proofs of evidence were served on the Appellant before and even after the charge was read to him and his plea taken. In a similar case to this, the dire consequence of such a failure was aptly stated per Muhammad in the case of FRN V WABARA & ORS (2013)5 NWLR (PT.1347) 331 thus;
“…the trial Court’s power to grant the appellant the leave sought to prefer a charge against the respondents is provided for by Section 185 (b) of the Criminal Procedure Code hereunder set out for ease of reference, No person shall be tried by the High Court unless:(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court. (Underling supplied for emphasis),
Order 3(1) and (2) (a) and (b) Of the Criminal Procedure (Applications. for Leave to Prefer a Charge in the High Court) Rules 1970 specify what conditions an applicant shall fulfil to entitle him to the leave he seeks:” The Order and Rule provide: “3(1) Every application, other than an application made under Rule 2, shall be in writing signed by the applicant or his counsel and, (a) Shall be accompanied by the charge in respect of which leave is sought and unless the application is made by or on behalf of the Attorney- General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are, to the best at the deponent’s knowledge information and belief true; and (b) shall state whether or not any application has previously been had under these rules and whether or not any proceedings have been taken under Chapter XVII of the Criminal Procedure Code, and the result of any such applications or proceedings.
(2) Where no proceedings have been taken under Chapter XVII of the Criminal Procedure Code, the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken and; (a) there shall accompany the application proofs of the evidence of the witnesses whom it is proposed to call in support of the charge and (b) the application shall include a statement that the evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is to the best of the knowledge information and belief of the applicant, a true case.
In the case at hand, there is nothing on record to show that this essential procedure was followed. In the circumstance, the entire proceeding of the lower Court was rendered a nullity. For this reason, I also allow the appeal and in the circumstances of this case abide by the order for retrial before another Judge other than E.Karatu, J.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the lead Judgment just rendered by my learned Brother Justice Frederick O. Oho JCA. I agree that the Appeal succeeds and is hereby allowed. I abide by all the consequential orders therein.
Appearances:
Husseini Zakariyu, Esq. For Appellant(s)
Abdulazeez Suleimaan, Esq. (Principal State Counsel, MOJ Kebbi State)For Respondent(s)
