ABUBAKAR v. STATE & ORS
(2021)LCN/15180(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/YL/134C/2019
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
SAIDU ABUBAKAR APPELANT(S)
And
1. THE STATE 2. ALIYU HARDO 3. SADIQ MIJINYAWA 4. SHUAIBU ABUBAKAR 5. UMAR MOHAMMED 6. SANUSI IBRAHIM EMMASON 7. SANI MUSA 8. KABIRU ABDULLAHI RESPONDENT(S)
RATIO
WHETHER ACCUSED PERSONS STANDING TRIAL FOR A CRIMINAL OFFENCE MUST BE PRESENT IN COURT THROUGHOUT THE PERIOD OF THEIR TRIAL
In Mohammed Vs. State (2018) 5 NWLR {Pt. 1613} 540 at 574, the Court held thus: – “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 be quashed.” Also, in THE STATE VS. LAWAL (2013) 7 NWLR {PT. 1354} 565 AT 586 PARAGRAPHS F – G, the Supreme Court 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.” PER BITRUS GYARAZAMA SANGA, J.C.A.
PROPER ORDER TO BE MADE WHERE THE PURPORTED TRIAL HAS BEEN VITIATED AB INITIO
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 BITRUS GYARAZAMA SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of the High Court of Adamawa State of Nigeria, Yola Judicial Division, Abdul-Azeez Waziri J., presiding in Suit No. ADSY/9C/2017; The State V. Aliyu Ardo; Sadiq Mijinyawa; Shuaibu Abubakar; Sani Musa; Kabiru Abdullahi; Saidu Abubakar; Umar Mohammed, Sanusi Ibrahim Emmason and Abdul Ojulu who was tried in absentia. The judgment was delivered on 16th January, 2019. The Appellant was the 6th Accused. The accused persons were charged with a 9 count charges for the offences of: (a) Conspiracy to commit Armed Robbery while armed with offensive weapons contrary to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (a) of the same Act; (b) Robbery while armed with offensive weapons punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.
On 3rd April, 2017, the Appellant was arraigned with seven (7) other accused persons. The charges were read and explained to all the accused persons
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in Hausa Language, to which they said they understood, and they pleaded “Not Guilty”. (pages 158 – 163 of the record of appeal). The prosecution called 13 witnesses, in proof of its case and tendered seven documents in evidence which were admitted and marked as Exhibits A – H respectively. On 27th June, 2018, the Appellant entered his defence he testified as DW11 and called his father who testified as DW3. He then closed his defence. (pages 238 – 239 of the Records).
The learned trial Judge ordered for final written addresses to be filed and exchanged on 17th October, 2018. Learned counsel adopted their respective written addresses. (pages 246 – 248 of the Records). On 16th January, 2019, the learned trial Judge delivered his judgment. (pages 249 to 300 of the Records). He held, thus:
“In the final analysis, the prosecution has been able to prove her case beyond reasonable doubt and all the accused persons are found guilty as charged in respect of the 9 count charges and the only available remedy is to invoke the provision of the Law. Accordingly, all the accused persons are convicted to death in all the 9 counts.”
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After a plea of Allocutus by learned counsel to the convicts, the learned trial Judge pronounced his sentence thus:
“The Honourable Court has considered the plea of mitigation in the allocutus of the learned counsel to the 1st – 4th, 6th, 7th and 8th convicts as well as the one made by the 5th convict. The punishment prescribed under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act LFN, 2004 is mandatory and this Court has no power to do otherwise.
In the light of the above, all the convicts are sentenced to death by being hanged by the neck till they are dead to be certified by a medical doctor or as the Executive Governor of Adamawa State may direct. May God have mercy on your souls.”
This decision aggrieved the Appellant so he filed a Notice of Appeal dated 11th April, 2019 containing 5 grounds of appeal (pages 302 – 304 of the Records). He filed an Amended Notice of Appeal on 2/6/2020 containing 8 grounds of appeal. He then filed a Further Amended Notice of Appeal on 16/10/2020 also containing 8 grounds of appeal. He withdraw the earlier Amended Notice of Appeal filed on
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2/6/2020 and it was struck out on 12/11/2020. The record of appeal was compiled and transmitted to this Court on 26/7/2019 but deemed on 3/6/2020. The Appellant’s brief was filed on 2/6/2020 but deemed as duly filed and served on 3/6/2020. Learned counsel to the Appellant filed an Amended Brief of Argument on 16/10/2020. The earlier filed brief was withdrawn and struck out on 12/11/2020. The 1st Respondent’s brief of argument was filed on 3/7/2020. Another 1st Respondent’s brief was filed on 3/11/2020 and the earlier one filed on 3/7/2020 was withdrawn and struck out on 12/11/2020. The Appellant’s Reply Brief was filed on 11/11/2020.
On 9th March, 2021, learned counsel to the parties adopted their respective briefs of arguments and we reserved for judgment.
The Appellant’s Amended Brief of Argument was filed on 16/10/2020. It was settled by Chief Leonard Daniel Nzadon. Learned counsel formulated 7 issues for determination. The 1st Respondent’s Brief of Argument was filed on 3rd November, 2020. It was settled by Z. Y. Usman, Esq., Senior State Counsel II Attorney-General’s Chambers, Ministry of Justice Yola.
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Learned counsel to the Appellant canvassed 7 issues for determination. However, the point of interest is issue 1 formulated by learned counsel to the Appellant which reads thus: –
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. (Ground 5)
I noted that this issue was raised in a sister appeal No. CA/YL/221C/2019 Sanusi Ibrahim Emmason V. The State and Ors, which appeal emanated from the same judgment with the instant appeal. The present appellant was the 5th Respondent in that appeal. That appeal was heard and determined by this Court on 14th December, 2020. The 1st issue formulated by the Appellant in Appeal No. CA/YL/221C/2019 was in pari materia with the issue 1 in the instant appeal which I quoted above. In determining the said issue 1, this Court held, inter alia thus: –
“Section 153 of the Criminal Procedure Code Law of Adamawa State (CPC) as follows: (sic)
“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
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interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”
The Appellant was charged jointly with the 2nd – 9th convicts. Page 158 of the Records shows that on 3rd April, 2017 when the accused persons were arraigned, the 9th Convict Abdu Ojulu, was recorded absent by the lower Court, however no explanation was given for his absence. The 9th Convict was never arraigned as such his plea was not taken. (See page 158 – 163 of the Records). Thus he did not appear before the trial Court to enter his defence. On 16th January, 2019 when the said trial Court delivered its judgment, at allocutus stage, the record shows that the 9th Convict was not in Court, nor was he represented by Counsel (see page 299 of the Records). However, the Court went ahead and convicted all the accused persons to death by hanging including the 9th convict who was not in Court. The question to determine now is: What does the Law say where an accused is absent during joint trial?
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: –
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“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 proceedings of the joint trial and may continue the proceedings against each or any of the accused separately.”
In Mohammed Vs. State (2018) 5 NWLR {Pt. 1613} 540 at 574, the Court held thus: –
“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 be quashed.”
Also, in THE STATE VS. LAWAL (2013) 7 NWLR {PT. 1354} 565 AT 586 PARAGRAPHS F – G, the Supreme Court 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.
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See also Daniel Adeoye Vs. State (1999) 6 NWLR {Pt. 605} 74.”
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 and I so hold. 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 Appeal No. CA/YL/221C/2019, this Court concluded by holding that: –
“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.”
The decision by this Court in Appeal No. CA/YL/221C/2019 delivered on 14th December, 2020 is binding on us by
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virtue of the doctrine of stare decisis. Therefore, I adopt and abide by that decision and hold that the trial conducted by the High Court of Justice Yola Judicial Division in Suit No. ADSY/9C/2017 leading to the judgment delivered by that Court on 16/1/2019 which is now on appeal is a nullity. It is the judgment of this Court that this case is hereby remitted back to The Honourable, The Chief Judge of Adamawa State to assign it to himself or another Judge of the High Court of the State apart from the learned trial Judge who heard and determined the case before the lower Court, for a fresh trial.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft copy of the judgment delivered by my learned brother BITRUS GYARAZAMA SANGA, JCA. I agree with his reasoning and conclusion. I also hold that the case be remitted back to the Chief Judge of Adamawa State to assign same to himself or another Judge of the High Court other than the learned trial Judge who heard and determined the case before the lower Court, for a fresh trial.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in draft the judgment just delivered by my learned brother BITRUS GYARAZAMA SANGA JCA. I adopt the judgment as mine with nothing further to add.
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Appearances:
CHIEF LEONARD DANIEL NZADON For Appellant(s)
Y. USMAN, ESQ. – For 1st Respondent. For Respondent(s)
