SHAFIU SHUAIBU v. THE STATE
(2019)LCN/12585(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/S/41C/2018
RATIO
EVIDENCE: THAT THE JUDGE CANNOT WRITE JUDGEMENT ON THE EVIDENCE OF ANOTHER COURT
“It will therefore be palpably wrong for a judge to write a judgment on the evidence recorded by another judge, a trial being a judicial examination of evidence given before the Court after hearing the parties and their witnesses. It therefore amounts to a mistrial for one judge to receive evidence and another to write judgment on it. See EGHOBAMIEN V FMBN (2002) LPELR 1045 (SC). The apex Court in the case of SOKOTO STATE GOVT V KAMDEX (NIG) LTD (2007) LPELR 3093 (SC) eloquently stated the law thus: ‘… a Judicial officer, who had not sat in Court in that capacity to exercise the Jurisdiction of the Court in hearing a cause or matter, cannot have the capacity in law to sit in Court and write a judgment or opinion to determine a dispute which he did not participate in the hearing.'” PER AMINA AUDI WAMBAI, 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
SHAFI’U SHUA’IBU Appellant(s)
AND
THE STATE Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
This appeal before us rose from the judgment delivered on 13/12/2018 by Hon. Justice E. A Karatu of Kebbi State High Court in charge no. KB/HC/RF/14/2015. The Appellant was the subject of the two count charge. According to the 2 count charge, the Appellant, (Shafiu Shuaibu), Nazifi Haruna (at large); as well as Nafiu Yusuf and Nafiu Sama’ila (Convicts) on or about the 10th day of October, 2014 at Wadata Area in Jega town, Jega Local Government Area of Kebbi State, within the jurisdiction of Kebbi State High Court, agreed among themselves to do all illegal act, to commit armed robbery at Abidina, Surajo Abubakar and Bashiru Umar which act was done in pursuance of the agreement. In furtherance of the conspiracy, at about 3:30am hours they entered the houses of zainula Abidina, Surajo Abubakar and Bashiru Umar with knives and cutlasses, threatened to kill them and collected various brands of cell phones and sums of money from them which acts constitute offences punishable under Section 5 (b) and 1 (2) (a) of the Robbery and Firearms Act, 2004.
Appellant pleaded not guilty consequent upon which the prosecution paraded one witness, (the investigating police officer), as PW1 through whom Exhibits 1 & 2 were tendered. Exhibit 1 is the Appellant’s statement to the police while Exhibit 2 is the PW1’s (IPO’s) statement.
The case for the prosecution as garnered from the record is that the appellant along with other named accused persons in the charge sheet on or about the stated date conspired to commit robbery and in furtherance of the agreement, armed with knives, sticks and cutlasses, went to the houses of Zainula Abidina, Surajo Abubakar and Bashiru Umar and robbed them of some cell phones and some amount of money. Nafiu Yusuf and Nafiu Samaila were arrested, tried on charge No. KB/HC/RF/14/2015 and convicted and sentenced to death. The appellant and Nazifi Haruna were then at large.
Subsequently, the appellant was arrested and arraigned before the Court on 14/2/2016, on the same charge No. KB/HC/RF/14/2015. The appellant was the sole witness for the defence, as DW1. He denied any involvement in the commission of the crime and resiled from his confessional statement.
At the end of the trial began and was concluded by Mairiga, C.J, in a judgment delivered by E. A. Karatu J., on the 13/12/2018, the appellant was found guilty as charged, convicted and sentenced to death pursuant to Sections 1 (2) (a) & 5 (b) of the Robbery and Firearms Act, 2004.
Aggrieved by his conviction and sentence, the appellant commenced this appeal by a notice of appeal filed on 24/01/2018 predicated upon 5 grounds of appeal.
In a brief of argument settled by Hussaini Zakariyau Esq., filed on 9/03/2018, 3 issues were distilled for determination, to wit:
(1) WHETHER by the decision in BASSEY EDIBI Vs THE STATE (2009) LPELR -8702; Hon Justice I.B. Mairiga (rtd) as at 13th December, 2017 can lawfully signed (sic) a Judgment that Hon. Justice E.A Karatu of the Kebbi State High Court can read. (Distilled from ground 1 of the Notice of Appeal).
(2) WHETHER the trial Court is not functus officio in Charge no. KB/HC/RF/14/2015 having delivered a Judgment in same on 31st March 2016 and which judgment was on appeal in CA/S/72C/2016 and CA/S/10SC/2016 (Distilled from ground 2 of the notice of appeal).
(3) WHETHER the appellant can be convicted on an uncorroborated retracted confessional statement. (Distilled from ground 4 and 5 of the Notice of Appeal).
Learned Abdul-Azeez Suleiman, Principal State Counsel, Ministry of Justice, Kebbi State who settled the respondent’s brief of argument filed on 16/4/2018 adopted the issues raised by the learned appellant’s counsel.
I will determine this appeal on the 3 issues donated by the appellant’s learned counsel.
ISSUE NO. 1
The appellant’s contention in the terse argument in support of this issue, is that the learned trial judge, Hon. Justice E. A. Karatu wrongly applied the decision in EDIBI vs THE STATE (supra) when on 13/12/2017, she read the judgment purportedly written and signed by Hon Justice I. B. Mairiga, C.J, who retired in July 2017. That as at July 2017 when I. B. Mairiga, C.J retired, he did not and could not have written and signed the judgment purportedly written and signed on 13/12/2018 after his retirement and when he was no longer a judicial officer. Thus the learned counsel argued, the judgment written and signed on 13/12/2017 when Hon. Justice Mairiga had retired, is a judgment written by a person who did not participate at the trial and since it is not the law that a judge can read the judgment written by another person who did not participate at the trial, the said judgment is null and void and should be set aside. He referred to the EDIBI’S case (Supra), and that of SOKOTO STATE GOVERNMENT vs KAMDEX (NIG) LTD (2007) LPELR-3093 (SC) in urging us to so hold and resolve the issue in favour of the appellant.
On the second issue, it was submitted that the trial Court having delivered its judgment in the same charge No. KB/HC/RF/14/2015 against other persons, now convicts, he has become ‘functus officio’ and can no longer sit on or re-open its books on the same charge number, more so that the judgment in the same charge number delivered on 31/3/2016 is subject of appeal Nos CA/S/72c/2016 and CA/S/105C/2016 pending before this Court. He referred to the cases of SMITH vs SOROYEHUM (2013) 37 WRN 145, (1 CITEC INTERNATIONAL ESTATE LTD vs JOSIAH (2014) LPELR 22314 (SC) for the meaning of functus officio.
On the third issue, it was submitted that the only evidence on record against the appellant which the lower Court relied upon, is the uncorroborated retracted confessional statement which did not meet the six veracity tests laid down in R vs SKYES (1913) & CR.APP. R. 223. That the Appellant’s statement made at the police division, Jega which could have corroborated Exhibit I was not tendered by the respondent. Rather, the evidence of PW1 and Exhibit 2 (IPO’s statement), contradicts Exhibit 1, sharply, in that the statement was not endorsed by a superior police officer in red ink as stated by PW1 and thus Exhibit 1 should not have been attached any weight. The cases of OGUN vs THE STATE (2013) 19 WRN 160, 164 ratio 3, DAWA vs THE STATE (1980) 8-11 SC 236, 267 and IBEME vs STATE (2013) 8 NCC 42, 45 and MUSA vs THE STATE were cited in support. We were urged to resolve all three issues in favour of the appellant and to allow the appeal discharge and acquit the Appellant.
In his response to the first issue, learned respondents counsel submitted that the judgment written by Hon Justice I. B. Mairiga which could not be read within three months after the conclusion of evidence and adoption of written addresses due to his several engagements before his retirement in July 2017, could be read by Hon Justice E. A. Karatu, another judge of the same Court, contending further that a party should not go on appeal merely on the ground that judgment he wants to be set aside was delivered outside the 90 days period. He called in aid the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of DENNIS AKOMA & ANOR vs OBI OSENWOKWU & ORS (2014) LPELR 22889 (SC), and BASSEY EDIBI vs THE STATE (Supra).
On the second issue, it was submitted that the appellant having been charged and tried separately from the other accused persons who were convicted on 31/3/2016 in charge No. KB/HC/RF/14/2015 now subjects of appeal No. CA/S/72c/2016 and CA/S/105c/2016, the trial judge was not functus officio in trying the appellant separately on the same charge KB/HC/RF/14/2015. He cited the cases of SMITH vs SOROYERHUM (Supra) and DINGYADI and ANOR vs INEC & ORS (2011) 40 WRN 1 for the meaning of functus officio.
On the third issue, it was submitted that an accused person can be convicted on his voluntary confessional statement regardless of the fact that he resiled from or retracted it all together at the trial as held in AKPAN vs STATE (1990) 7 NWLR (Pt. 160), ABASI vs STATE (1991) 10 (SC) 124, 158, though it is desirable to confirm the veracity of the confession using the guidelines restated in the case of IBRAHIM MUSA vs THE STATE, (2016) NSCQR. He referred to the appellants evidence in cross examination at pages 52-53 where the appellant admitted going to Imo state to stay with his uncle and returned only after the conviction of the other co-accused persons, Nafiu Yusuf and Nafiu Samaila thinking that the case was over, as corroborating his confessional statement in Exhibit 1 that Nafiu Jangunana had called him (appellant) on phone suggesting that they should go to the three houses in the night to get money for sallah celebration.
On the absence of the endorsement of the superior police officer on Exhibit 1, it was submitted that, such a requirement is only of practice and its absence does not necessarily subject the confession to any suspicion or reduce the weight to be attached to it, urging us to resolve the issues against the appellant and in favour of the respondent to dismiss the appeal.
The simple question in contention on the first issue is whether the judgment delivered by Hon. Justice E. A. Karatu J., on 13/12/2017 purportedly written and signed by Hon. Justice Mairiga on the 13/12/2017 who retired in July 2017 is valid and is within the contemplation of the decision in the case of EDIBI V THE STATE (Supra).
The undisputed facts on record are that the trial of the Appellant which commenced with the taking of his plea on the 28/2/2017 and concluded on the 25/7/2017 with the adoption of counsel’s written addresses, PW1 and Dw1 having testified on the 19/4/2017 and 13/6/2017 respectively, was conducted by Hon. Justice I.B. Mairiga who retired in July 2017. The judgment delivered by Hon. justice E.A. Karatu on 13/12/2017 was signed by Hon. Justice I.B. Mairiga. It is therefore not in dispute that Hon. Justice Mairiga commenced, conducted and concluded the trial of the Appellant and adjourned the case for judgment. It is also not in dispute that Mairiga, C.J. retired in July 2017. Equally not in dispute is that judgment in the matter was delivered on 13/12/2017 by Karatu J. The said judgment was purportedly signed by Mairiga, C.J, who had retired in July 2017.
Simply stated, Hon. Justice Mairiga sitting alone in his original jurisdiction heard the case from the beginning to the end and adjourned the case for judgment. He however retired in July before delivering the judgment. Karatu J., who did not participate in the hearing of the case delivered the judgment. The scenario therefore is that of one judge conducting the trial from the beginning to the end and another judge who did not participate in the trial delivering the judgment of the judge who conducted the trial but had ceased to be a judicial officer as at the time of writing and signing the judgment delivered by the other judge who was a complete stranger to the proceedings.
As a prelude to delivering the judgment on 13/12/2017, Karatu J., at pages 56-67 of the record stated inter alia as follows:
‘Hearing was concluded in this case by my Lord the Hon. Chief Judge, Justice Ibrahim Bala Mairiga who is now retired in July, 2017 and the Judgment was adjourned to a later date which will be communicated to the parties. In view of his several engagements, meetings and the preparations towards his retirement, the judgment could not be delivered within the Constitutional provisions of 3 months after conclusion of the trial and adoption of final written address. He has however written and signed the Judgment which he asked me to read on his behalf in accordance with Section 294 of the 1999 Constitution. Also, in the case of BASSEY EDIBI Vs THE STATE (2009) LPELR – 8702 (CA) where the question was whether a Judge can deliver Judgment of another Judge and it was held that in deserving cases and circumstances, one Judge may read the judgment written by another Judge who is unavoidably not available to deliver it. However, there must be an indication that the Judge is reading the judgment written by another Judge who is unavoidable to deliver it in person – Per Ngwuta JCA at page 11, paras B – C. Also, in OWOYEMI Vs ADEKOYA (2003) 12 SC (Pt.1) 1.’
The issue in contention here as rightly submitted by the learned Respondent’s counsel is not the delivery of the judgment outside the 90 days constitutionally prescribed, but is the propriety of E.A. Karatu J., reading the judgment of I. B. Mairiga, C.J (Rtd) written and signed after his retirement.
Now as rightly quoted from the said decision in EDIBI V THE STATE (Supra), in deserving cases and circumstances one judge may read the judgment written by another judge of the same Court who is unavoidably not available to deliver it. See RASAKI YUNUSA v MADAM SUWEBATU OTUN (1967) L.L.R. However, this statement of law applies only upon fulfillment of certain conditions which is why the statement of law does not stop there. The eligibility of a judge of the High Court to read the judgment written by another depends on a number of factors or conditions. A judge of the High Court cannot read the judgment of another judge who has ceased as the time of reading the judgment, to be a judicial officer or has been elevated to a higher bench or has otherwise vacated the office. Similarly, trial judge cannot write a judgment based on the recorded evidence of witnesses in a case he did not participate in from the beginning to the end. A judgment written by a judge who is no longer a judicial officer is no judgment that can be read by a serving judge of the Court. A trial judge who did not participate in the hearing of a case from beginning to the end to observe the dememour of witnesses or one who has ceased to be a judicial officer has no business and indeed no competence to write or sign a judgment for another judge to read. This is why the said judgment of EDIBI V THE STATE (Supra) did not stop at the first part of the general statement of the law. It went further to say:
“a judge of a trial Court cannot write a judgment based on the recorded evidence of witnesses in a case he did not try from the beginning to the end?..My Lords, it is a fundamental principle of law and practice that a judge who did not conduct the entire trial in a case cannot write and/or deliver judgment in the case, subject to a judge reading a judgment written by a Judge who heard the case and indicating so in the records. In the same vein, a member of a panel of Judges who did not hear the entire case cannot sign the judgment in the case. See EGBA N. A. v. GBADAMOSI (1937) 13 NLR 119; RUNKA v KATSINA N. A. (1950) 13 WACA 98; RAJI v BAUCHI N.A. (1957) NRNLR 31.
Therefore, the conditions when a judge of the High Court can read the judgment of another judge are as stated in the case of WULGE V. OLAYINKA & ORS (2017)-43356(CA) Per Abiru JCA thus:
“It is settled law that in deserving circumstances, there is nothing wrong with one Judge reading the judgment written by a fellow Judge of the same Court who is unavoidably not available to deliver it – Yunusa Vs Otun (1967) LLR 34, Edibi Vs The State (2009) LPELR-8702 (CA), Attorney General of the Federation Vs All Nigeria Peoples Party (2003) 15 NWLR (Pt. 844) 600, IPC (Nig) Ltd Vs Nigerian National Petroleum Corporation (2015) LPELR-24652 (CA). Case law authorities however suggest that this ability of a Judge to read the judgment written by another Judge who is unavoidably absent lasts only as long as the Judge who wrote the judgment remained in the service of that same Court and that where the absence of the Judge is by reason of elevation to a higher bench, death, dismissal or retirement, it will be incompetent for a Judge to read the judgment written by the absent Judge from the date of the occurrence of the event causing the absence. In other words, that another Judge is incompetent to read the judgment written by a Judge who has either been elevated to a higher bench or who has died or was dismissed or who has retired or was retired, from the date of such elevation, death, dismissal or retirement.”
This is the correct position of the law as it relates to the reading of judgment written by another judge of the High Court or any other Court below the Court of Appeal or the Supreme Court.
The only exception to this position of the law appears to be that created by the provision of Section 294 (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in respect of the judgments of the Supreme Court and Court of Appeal only. Section 294 (2) of the Constitution, FRN 1999 (as amended) read:
(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion: Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
Therefore, with respect to the Court of Appeal or the Supreme Court, a written opinion or judgment written by one member of the Panel can be read either by another member of Panel who participated in the hearing of the appeal, or any other justice of the Court. See SHITTA BEY V A.G.F (1998) 10 NWLR (Pt. 570) 392.
However, this provision, which allows the written opinion of a Justices of the Court of Appeal or the Supreme Court to be read by another Justice of the Court whether he was present at the hearing or not, does not apply to a judge of the High Court.
In the case at hand as at 13/12/2017 when Karatu J., read the judgment purportedly written and signed by Hon. Justice Mairiga on the 13/12/2017, Hon. Justice Mairiga had ceased to be a judicial officer and had no vires to write or sign any judgment after his retirement in July. On the other hand, Karatu J., who read the judgment on 13/12/2017 to which she was a complete stranger, has no competence to write a judgment based on the recorded evidence of witnesses by a different judge, who though heard the matter had ceased to be possessed of the legal vires to write or deliver the judgment as at 13/12/2017.
From July when Hon. Justice Mairiga retired as the Chief Judge of Kebbi State, he ceased to have any judicial power to perform any judicial function.
Therefore, as at 13/12/2017 when the judgment was read by E. A. Karatu J., neither Hon. Justice Mairiga nor Hon. Justice Karatu had the competence to read the judgment which was and signed by Hon. Justice Mairiga who had retired in July, 2017. In other words, Hon. Justice Mairiga having ceased to be a judicial officer had no competence to perform the judicial function of writing and or signing a judgment which another judge could read. On the same vein, Hon. Justice Karatu was incompetent to read the judgment written and signed by Mairiga, C. J, who had ceased to be vested with the power to write and or sign any judgment as contemplated by Section 294 (2) of the Constitution and Section 269 (1) of the Criminal Procedure Code. Similarly, assuming Karatu J., who read the Judgment, wrote and signed the judgment it would still be an incompetent judgment having not participated in the trial of the appellant. This is because the hearing, listening to and observing the demeanour of witnesses as they testify in open Court is an integral part of the function of a trial judge, the absence of which deprives the judge of the advantage of assessing the credibility of the witnesses from their demeanour.
It will therefore be palpably wrong for a judge to write a judgment on the evidence recorded by another judge, a trial being a judicial examination of evidence given before the Court after hearing the parties and their witnesses. It therefore amounts to a mistrial for one judge to receive evidence and another to write judgment on it. See EGHOBAMIEN V FMBN (2002) LPELR 1045 (SC). The apex Court in the case of SOKOTO STATE GOVT V KAMDEX (NIG) LTD (2007) LPELR 3093 (SC) eloquently stated the law thus:
” … a Judicial officer, who had not sat in Court in that capacity to exercise the Jurisdiction of the Court in hearing a cause or matter, cannot have the capacity in law to sit in Court and write a judgment or opinion to determine a dispute which he did not participate in the hearing.”
It thus stands out clear and tall in the case at hand that from whatever angle or spectacle the judgment written and signed by Mairiga J., on 13/12/2017 and delivered by E. A. Karatu J., is looked at, the judgment is a nullity. If Hon. Justice Mairiga wrote and signed the judgment on 13/12/2017, it is a judgment written and signed by a person who had ceased to be a judicial officer. It is a null judgment. On the other hand if Karatu J., who read the judgment but did not participate in the hearing of the case wrote the judgment, it is a null judgment, for it is a mistrial for one judge to receive evidence and for another judge to write the judgment. I have no difficulty therefore in agreeing with the learned Appellant’s counsel that the lower Court misapplied the decision in the case of EDIBI V THE STATE (Supra).
In the circumstance, I declare the judgment, the subject of this appeal, delivered by Karatu J, on 13/12/2017 a nullity. Having done so, I resolve this issue in favour of the Appellant; the effect of which renders the consideration of the remaining two issues otiose. Resultantly, I allow the appeal, and remit the case, KB/HC/RF/14/2015 back to the Hon. Chief Judge of Kebbi State for re-assignment to another judge for trial de novo.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by the consequential orders made by Court.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance a draft copy of the lead Judgment just rendered by my learned Brother Justice Amina Audi Wambai JCA. I agree entirely with the reasoning and the conclusions contained in the lead Judgment. I also allow the Appeal and abide by all the consequential orders.
Appearances:
Hussaini Zakariya’u, Esq. For Appellant(s)
Shamsudeen Jaafar, Esq.(A.D.P.P, A.G. MOJ, Kebbi State)For Respondent(s)
