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ADAMU v. STATE (2022)

ADAMU v. STATE

(2022)LCN/15989(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, February 18, 2022

CA/K/97/C/2021

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

IDRIS ADAMU APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON COMMENCEMENT OF TRIAL

The trial of an accused person commences when his plea is taken. So the accused person’s right to fair hearing will commence from the time he is brought before a Court and his plea is taken. See Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 582 – 583 (SC).   PER TALBA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

It is settled law that fair hearing means that the trial or the conduct of the proceedings thereof is in accordance with the relevant law and rules in order to ensure Justice and fairness. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 and Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458. The rule of fair hearing is not a technical doctrine but a fundamental requirement in any criminal trial most especially in cases of capital offences. The question now is whether the trial of the Appellant and the conduct thereof was in accordance with the Criminal Procedure Code and the Constitution. It must be emphasised that when the law vest a right on a citizen, a Court of law will resolutely resist any attempt and by whatever method to deny the citizen the enjoyment of the right conferred by law. See Bernard Ojeifo Longe v. First Bank of Nig. Plc (2010) 2-3 SC (Pt. 111) 61. Upon arraignment of an accused person in a case involving an allegation of having committed a capital offence a trial judge has a legal duty to create an environment of fair hearing by explaining to the accused his right to have a legal practitioner of his choice to defend him. This must be done even before the plea of the accused is taken. In Ariori & Ors. v. Elemo & Ors. (1983) 14 NSCC 1, the Apex Court held that the right to fair trial is much more than a personal right of the subject, public policy demands that every subject is entitled to a fair trial and that trials must conform with settled principles of justice. The term “fair trial” and “fair hearing” are synonymous and mean the same thing. The issue of fair trial/hearing is constitutional and fundamental. It cannot be alienated. See Godwin Chukwuma (aka Goddy) v. The F.R.N (2011) 5 SC (Pt. 11) 84. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. See State v. Dr. Olu Onagoruwa (1991-1992) ALL NLR 579 and in the case of Ogboh v. F.R.N (2002) supra, the Court held:
“Section 36(6) of the Constitution applies to every person charged with a criminal offence. The attitude of Courts to the provisions of fair hearing is to seek after the highest possible idea of justice and fairness… fair hearing involves a fair trial and a fair trial of a case consist of the whole hearing and there is no difference between the two. The right to counsel is at the root of fair hearing and its necessary foundation.”
PER TALBA, J.C.A.

WHETHER OR NOT BREACH OF THE PRINCIPLE OF FAIR HEARING NULLIFIES THE WHOLE PROCEEDINGS IN COURT

The fair hearing principle entrenched in the constitution is so fundamental in judicial process that breach of it will vitiate or nullify the whole proceedings no matter how well conducted. And once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing the proceedings cannot be salvaged as they are null and void ab initio. See Tim Orugbo v. Anor v. Bulara UNA & Ors. (2002) 13 SCM 153. It is unnecessary for a person alleging a denial of fair hearing to establish any miscarriage of justice before he could invoke his right to fair hearing. See T. E. Olumesan v. A. Ogundepo (1996) 2 SCNJ 172.
Where an accused is unrepresented by counsel, the trial Court should adjourn the case. The Court can assign a counsel to defend the accused like in this instant case before the plea of the accused is taken. The word at every stage of the trial is unambiguous and the literal meaning is that the Court has a legal duty not to proceed at any stage of the proceedings involving a trial of an accused person in a capital offence without legal representation. The failure to assign a counsel to defend the Appellant before his plea was taken has violated the right to fair hearing of the accused under Section 36(1) of the Constitution. Consequently, the whole proceeding is rendered null and void ab initio, and it is liable to be set aside. Accordingly, the proceedings/trial is declared a nullity and it is hereby set aside. 
PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): The appeal emanated from the Judgment of Katsina State High Court in Charge No: KTH/FT/9C/2010 delivered on 22nd February, 2016. The Appellant was convicted of Armed robbery punishable under Section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.

​The Appellant with one other person now at large were alleged to have on or about the 31st day of December 2009, while armed with a stick and a matchet at Yandoka village and Kahi village Road of Faskari Local Government Area, Katsina State attacked and robbed Musa Garba and Isah Tsoho of the sum of N1,850.00 (One Thousand Eight Hundred and Fifty Naira). The Appellant pleaded not guilty. The Respondent called five (5) witnesses and tendered four (4) Exhibits which are the alleged statement made by the Appellant in Hausa with the English Version, admitted as Exhibits A and A1, B, C, D and D1. The Appellant had denied the voluntariness of the statement. At the trial within trial, the Appellant retracted the confessional statement and as a result the statement was admitted by the trial Court and marked as Exhibits A and B. In his own defence the Appellant testified as DW1. He denied committing the alleged offence and he gave an account of his arrest by some people in mufti and they invited him to Faskari Police Station. He was informed that an armed robbery had taken place wherein the robber blocked the road. When he denied the allegation he was beaten by the Police and kept at the cell in the Station.

In a considered judgment delivered on the 22nd February, 2016, the learned trial Judge found that the Respondent had proved its case beyond reasonable doubt. The Appellant was convicted and sentenced to death by hanging.

Being aggrieved by the said conviction and sentence, the Appellant, pursuant to an order of this Court granted on the 11th February, 2021 to appeal out of time, instituted this appeal by a notice of appeal filed on 24th February, 2021. The notice of appeal at pages 50 to 55 of the record of appeal contains six (6) grounds of appeal. Habeeb A. Oredola Esq., who settled the Appellant’s brief filed on the 30th of July, 2021, identified five issues for determination, namely:
1. Whether the conviction of the Appellant is not liable to be set aside for breach of the Appellant’s fundamental rights to fair hearing and non-compliance with the mandatory procedures. (Ground 1)
2. Whether the lower Court was right to hold that the Respondent proved all the ingredients of armed robbery beyond reasonable doubt. (Ground 4 and 5).
3. Whether the learned trial Judge was right in holding that the retracted confessional statements (Exhibits A and A1 and Exhibits D and D1) are voluntary, without providing the reasons or evaluation of evidence in judgment. (Ground 2)
4. Whether the learned trial Judge properly evaluated the content of Exhibits A and A1, and Exhibits D and D1 which was heavily relied upon in the conviction and sentence on the Appellant. (Ground 3)
5. Whether the conviction and sentence of death by hanging passed on the Appellant by the trial Court ought to be set aside in view of the absolute failure of the lower Court to evaluate the defence of the Appellant (Ground 6).

On his part A. A. Ibrahim, Director Civil Litigation Katsina State Ministry of Justice, who settled the Respondent’s brief filed on the 12th of July, 2021, adopted the five (5) issues submitted by the Appellant. At the hearing of the appeal on the 25th of November, 2021 the learned Appellant’s counsel adopted his brief of argument and he urged the Court to allow the appeal and set aside the judgment of the lower Court. The learned Respondent’s counsel equally adopted his brief and he urged the Court to dismiss the appeal.

​After a perusal of the five (5) issues raised by the Appellant, I also adopt them as issues for the determination of this appeal. To begin with issue one thus: Whether the conviction of the Appellant is not liable to be set aside for breach of the Appellant’s fundamental rights to fair hearing and non-compliance with the mandatory procedures prescribed by the law. The Appellant contended that the learned trial Judge denied the Appellant the right to a legal practitioner at the Court proceedings of 12th December, 2011. The learned Appellant’s counsel submitted that legal representation is mandatory at every stage of the proceedings in criminal trial where the Appellant is standing trial for a capital offence. The learned trial Judge failed to observe a mandatory procedure prescribed in Section 186 of the Criminal Procedure Code (CPC) which required the Court to appoint a legal practitioner for a person accused of a capital offence, if he is not defended by a legal practitioner. The learned trial Judge breached the Appellant’s fundamental right to fair hearing as guaranteed by Section 36(6) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The learned counsel relied on the case of Ogboh v. F.R.N (2002) 10 NWLR (Pt.774) 21; Akpan Udofia v. State (1988) 7 SCNJ (Pt. 1) 118; Udo v. State (1988) LPELR – 3299 (SC). The learned counsel urged the Court to set aside the judgment hence it lacks foundation and basis to stand.

Responding to this issue, the learned Respondent’s counsel submitted that he concedes that it is clear from the record that the plea of the Appellant was taken without legal representation. The Appellant pleaded not guilty to the charge and even if the Appellant pleaded guilty to the charge an automatic plea of not guilty is to be entered for him since the allegation against him is that of a capital offence. And by the provision of Section 187 (2) of the Criminal Procedure Code (CPC) a plea of not guilty must be entered for the accused person. But it is on record that after the plea of the Appellant was taken he was assigned a counsel who was present in Court at the time the plea was taken and the counsel did not deem it necessary to apply for the plea of the Appellant to be re-taken after he was assigned to defend him. It is obvious that the counsel was satisfied with the plea of the Appellant taken on 12 December, 2013. Learned counsel submitted that the law as established by the apex Court is that a mere error or slip will not be fatal to the Respondent’s case until it is demonstrated by the Appellant that it has resulted to a miscarriage of Justice. See Azabada v. State (2014) 12 NWLR (Pt. 1420) 40 (SC). He submitted further that the Appellant was never denied fair hearing by the trial Judge and he was not misled by the proceedings of 12th December, 2011 when his plea was taken.

​Pursuant to the provisions of Section 186 of the Criminal Procedure Code (CPC) read along with Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is desirable to have an accused represented by a counsel at the trial. The trial of an accused person commences when his plea is taken. So the accused person’s right to fair hearing will commence from the time he is brought before a Court and his plea is taken. See Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 582 – 583 (SC). It is settled law that fair hearing means that the trial or the conduct of the proceedings thereof is in accordance with the relevant law and rules in order to ensure Justice and fairness. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 and Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458. The rule of fair hearing is not a technical doctrine but a fundamental requirement in any criminal trial most especially in cases of capital offences. The question now is whether the trial of the Appellant and the conduct thereof was in accordance with the Criminal Procedure Code and the Constitution. It must be emphasised that when the law vest a right on a citizen, a Court of law will resolutely resist any attempt and by whatever method to deny the citizen the enjoyment of the right conferred by law. See Bernard Ojeifo Longe v. First Bank of Nig. Plc (2010) 2-3 SC (Pt. 111) 61. Upon arraignment of an accused person in a case involving an allegation of having committed a capital offence a trial judge has a legal duty to create an environment of fair hearing by explaining to the accused his right to have a legal practitioner of his choice to defend him. This must be done even before the plea of the accused is taken. In Ariori & Ors. v. Elemo & Ors. (1983) 14 NSCC 1, the Apex Court held that the right to fair trial is much more than a personal right of the subject, public policy demands that every subject is entitled to a fair trial and that trials must conform with settled principles of justice. The term “fair trial” and “fair hearing” are synonymous and mean the same thing. The issue of fair trial/hearing is constitutional and fundamental. It cannot be alienated. See Godwin Chukwuma (aka Goddy) v. The F.R.N (2011) 5 SC (Pt. 11) 84. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. See State v. Dr. Olu Onagoruwa (1991-1992) ALL NLR 579 and in the case of Ogboh v. F.R.N (2002) supra, the Court held:
“Section 36(6) of the Constitution applies to every person charged with a criminal offence. The attitude of Courts to the provisions of fair hearing is to seek after the highest possible idea of justice and fairness… fair hearing involves a fair trial and a fair trial of a case consist of the whole hearing and there is no difference between the two. The right to counsel is at the root of fair hearing and its necessary foundation.”
Again in the case of Akpan Udofia v. State (1988) supra the Supreme Court held that:
“It is fundamental to a fair trial of a serious criminal charge like murder that the accused person should not be left unrepresented at any stage of the trial.”
The connotation at any stage of the trial means an accused person must be represented by a counsel throughout the whole proceedings from the time he is arraigned and his plea is taken. In this instant case, the learned trial judge assigned a counsel to defend the Appellant after his plea was taken, that does not cure the defect. In Oged Ovunwo & Anor v. Iheanyichukwu Woko & 2 Ors. (2011) SC 6-7 (Pt. 1) 1, the Apex Court held that:
“The right to fair hearing is an essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consist of the whole hearing.”
The fair hearing principle entrenched in the constitution is so fundamental in judicial process that breach of it will vitiate or nullify the whole proceedings no matter how well conducted. And once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing the proceedings cannot be salvaged as they are null and void ab initio. See Tim Orugbo v. Anor v. Bulara UNA & Ors. (2002) 13 SCM 153. It is unnecessary for a person alleging a denial of fair hearing to establish any miscarriage of justice before he could invoke his right to fair hearing. See T. E. Olumesan v. A. Ogundepo (1996) 2 SCNJ 172.
Where an accused is unrepresented by counsel, the trial Court should adjourn the case. The Court can assign a counsel to defend the accused like in this instant case before the plea of the accused is taken. The word at every stage of the trial is unambiguous and the literal meaning is that the Court has a legal duty not to proceed at any stage of the proceedings involving a trial of an accused person in a capital offence without legal representation. The failure to assign a counsel to defend the Appellant before his plea was taken has violated the right to fair hearing of the accused under Section 36(1) of the Constitution. Consequently, the whole proceeding is rendered null and void ab initio, and it is liable to be set aside. Accordingly, the proceedings/trial is declared a nullity and it is hereby set aside.

Having set aside the proceedings for being a nullity, it would amount to an academic exercise to proceed with the remaining issues. In this circumstance I make an order for retrial upon being satisfied that there are no special circumstances as would render it oppressive to put the Appellant on trial a second time, having regard to the serious nature of the offence and to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.

Appeal is allowed. The case is remitted back to the Hon. Chief Judge of Katsina State for assignment to another judge to conduct a retrial.

FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother Abubakar Mahmud Talba, JCA. He has dealt in great details with all the issues raised in the appeal and I agree with his reasoning and conclusions in the lead judgment. I have nothing useful to add, therefore I adopt the judgment as mine.

PETER OYINKENIMIEMI AFFEN, J.C.A.: Fair hearing, which is synonymous with fair trial, is a primordial procedural right enshrined in Section 36 of the 1999 Constitution that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination in a Court of law, which is also a Court of equity. It is one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD. (1972) SC 228] and consists of the right to information; the right and/or opportunity to make statements as well as confront other statements made against that person; and the right to have the Court or Tribunal take note of such statements. Indeed, fair hearing before a fair Tribunal is the first test of due process, which cannot be lightly esteemed. Breach of fair hearing is fundamental and goes to the foundational roots of a trial: the whole proceedings in the course of which the breach occurred and the decision reached thereat constitute a nullity. See BAMGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT. 622) 290.

The effect is particularly crucial in a criminal case (such as the present) in which the lower Court imposed the capital punishment. See KALU v STATE [2017] 14 NWLR (PT. 1586) 522 and AUDU v FRN [2013] 5 NWLR (PT. 1348) 397. The right to counsel is a fundamental component of fair hearing. By Section 36 (6) of the Constitution “every person charged with a criminal offence shall be entitled defend himself in person or by a legal practitioner of his own choice”. This constitutional provision is complemented by statutory provisions, including, notably, Section 186 of the Criminal Procedure Code which enjoins the Court to appoint a legal practitioner for a person charged with a capital offence who is not defended by a legal practitioner. A criminal trial commences upon arraignment and taking of the plea of an accused person, and ends with a sentence or an acquittal. The Supreme Court underscored the overeaching significance of arraignment in the scheme of criminal trial in EDIBO v STATE [2007] 13 NWLR (PT. 1051) 306 at 326 -per Tabai, JSC as follows: “The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity”. The right to fair hearing therefore inures from the moment of arraignment and subsists throughout the entire gamut of the trial. A person standing trial for a criminal offence, especially one that attracts capital punishment, ought not to be left unrepresented by counsel at any stage of a criminal trial. See EFFIOM v STATE [1995] 1 NWLR (PT. 373) 507 at 582 -583, AKPAN UDOFIA v STATE (1988) 7 SCNJ (PT. 1) 118 and UDO v STATE (1988) LPELR-3299(SC).
In the case at hand, this basic demand of fair hearing was observed in the breach. The records reveal that the Appellant’s plea was taken on 12th December 2011. He was not represented by counsel, and the trial Court did not appoint a legal practitioner for him as enjoined by Section 186 of the Criminal Procedure Code. The Appellant was subsequently represented by counsel but his trial, and eventual conviction and sentence for armed robbery under the Robbery and Firearms Act, Cap. R11, LFN 2004 were founded on the plea taken on 12th December 2011 when he was not represented by counsel, which renders the entire proceedings fundamentally flawed.
​The Respondent concedes that the Appellant’s plea was taken in the absence of legal representation in breach of relevant constitutional and statutory provisions, but contends that the counsel assigned to the Appellant after he had pleaded ‘Not Guilty’ to the charge (who was present in Court when the plea was taken) did not deem it necessary to apply for a fresh plea to be taken afterwards; and that the Appellant was neither misled by the proceedings of 12th December 2011 whereat his plea was taken nor has he demonstrated any miscarriage of justice occasioned thereby. Without much ado, the Respondent’s contention is misconceived. Aside from the fact that the law does not impose any obligation on an accused person or his counsel to apply to remedy defects in the process of arraignment, the relevant enquiry in proceedings plagued by breach of fair hearing is the integrity of the process leading up to the decision under review and not whether the eventual decision is correct. See TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ [1989] NWLR (PT. 117) 517. What remains material is that there was a clear breach of the rule of fair hearing enshrined in Section 36 (6) of the 1999 Constitution and/or Section 186 of the Criminal Procedure Code in the instant case, and the entire trial and ensuing conviction and sentence of the Appellant founded on the flawed plea taken on 12th December 2011 are liable to be quashed. See OTAPO v SUNMONU (1987) 5 SC 228.

​I accordingly record my concurrence with the leading judgment delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA in allowing the appeal and setting aside the Appellant’s conviction and sentence. I equally abide by the consequential order remitting the case for retrial before another Judge of the High Court of Katsina State.

Appearances:

Habeeb A. Oredola, Esq., with him, Abdul Hakeem Audu and S.D. Fabong, Esq. For Appellant(s)

A. A. Ibrahim DCL, Esq., with him, I. D. Baked SC (MOJ), Katsina State. For Respondent(s)