ALIYU SHEHU v. THE STATE
(2019)LCN/13343(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/K/337/C/2015
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
ALIYU SHEHU Appellant(s)
AND
THE STATE Respondent(s)
RATIO
FACTORS THAT DETERMINES THE JURISDICTION OF A COURT
This is a condition precedent to any valid arraignment or trial under the Criminal Procedure Code.
In the often cited locus classicus case, in Madukolu v. Nkemdilim (1962) LPELR-24023 (SC) the Apex Court, Per Bairamian, F.J held that:
?a Court is competent when (i) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.?
In the absence of prior leave sought and granted at the High Court, proceedings of the said Court leading to judgment, conviction and sentencing of the appellant is nothing but a wasted effort, null and void, as you cannot place something on nothing and expect it to stand. See Mcfoy v. U.A.C. (1961) 3 ALL E.R 1172.
This appeal succeeds on Issue No. 2 and there is no longer any need to address the question posed by Issue No. 1. The appeal is allowed.
In Okafor v. The State (supra), the Apex Court held thus:
?In the case in hand, the information was preferred without jurisdiction and the trial was a nullity. On that ground the Application for a new trial will be refused. Retrial implies that there was a former trial, and so this Court will not grant a new trial or (retrial) upon a trial which was null and void. See also: Okoro v. The Police (1953) 14 WACA 370. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned, tried, convicted and sentenced under the robbery and Fire Arms (Special Provision) Act, Cap R 11, Laws of the Federation of Nigeria 2004. He was alleged to have entered the shop at Yakubu Gowon Way, Kaduna on or about the 10th October, 2012 and robbed Hassana Saidu of the Sum of N500,000.00, her GSM and a pack of recharge cards worth about N500,000.00.
?At the trial, the appellant entered a plea of not guilty to the charge framed against him hence trial commenced with the evidence of P.W.1. Two other witnesses testified for the prosecution who tendered certain Exhibits including a Pistol and the confessional statement ascribed to the appellant. In his defence the appellant testified as DW1 and denied the allegation of robbery or armed robbery made against him. He distanced himself from the confessional Statement ascribed to him that he made those Statements. He said in his evidence that he was maltreated while in detention at the State C.I.D office in Kaduna. DW2, is the elder brother to the appellant. He acknowledged the fact that he saw the
1
appellant being beaten during his detention at the State C.I.D office. At the close of evidence and counsel?s final addresses the trial Court found against him in the judgment delivered on the 30th September, 2013. The Court pronounced him guilty of the offence under Section 1(2) of the Robbery and Firearms (Special Provision) Act. 2004. He was convicted and sentenced to death by hanging or firing squad, as it may please the Governor.
The convict initially appealed to this Court on two grounds vide the Original Notice of Appeal filed on the 31st December, 2013. However, by the Amended Notice dated the 3rd January, 2018 and filed on the 4th January, 2018, the appeal to this Court against the judgment of the High Court of Kaduna State is on four (4) grounds. The judgment was delivered on the 30th September, 2013.
The Grounds of complaint, shorn of the particulars are as follows:-
GROUND ONE
The learned trial judge erred in law when he sentenced and convicted (sic) the appellant to death by hanging on an amended charge which was not served on the appellant.
GROUND TWO
The learned trial judge erred in law when he sentenced and
2
convicted (sic) the appellant to death by hanging on amended charge the contents of which was not read and explained to the appellant and his plea thereto taken.
GROUND THREE
The learned trial judge erred in law when no leave to prefer the Criminal Charge against the appellant was granted as provided by Section 185(b) of the Criminal Procedure Code and proceeded to try convict the appellant such error occasioned a failure of justice.
GROUND FOUR
The trial Court erred in not reading and explaining the charge against the appellant in the language he understands and the error occasioned a grave miscarriage of justice.
?
The appellant through his counsel filed his brief of argument on the 11th January, 2018. Record of appeal had been transmitted to this Court before then. Respondent did not file any brief. The appeal came up on the 27th February, 2019 for hearing. The appellant and his counsel were put on notice, but were absent at the hearing. Respondent was equally absent and there was no legal representation made on its behalf. The appeal, nonetheless was deemed as argued based only on the brief of argument for the appellant pursuant to
3
Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
In the said brief of argument for the appellant are two (2) issues distilled or formulated at page 4 from the four (4) grounds of appeal thus:
?1. Whether the plea of the appellant to the Amended, charge was valid in law and has not breach (sic) the Appellant (sic) right to fair hearing (distilled from grounds 2 and 4).
2. Whether the leave to prefer the Criminal charge pursuant to Section 185(b) of the Criminal Procedure Code is a condition precedent to the validity of the trial, conviction and sentence of the Appellant (distilled from Ground 3 of the Notice of Appeal).?
?
The two (2) issues so formulated are canvassed at pages 4-10 of the Appellant?s brief of argument. Arguing Issue No. 1 in his brief, learned counsel for the appellant submitted that the charge or the amended charge was not read and explained to the appellant, there being nothing on record to show for it hence is a breach of appellant?s right to fair hearing under Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and 187(1) of the Criminal Procedure Code
4
(CPC). We were referred to the decision in Tobby v. State (2001) 4 SC (Pt. 11) 160; Effiom v. The State (1995)1 NWLR (Pt. 373) 507; Adeniyi v. State (2001) 5 SC (Pt. 11) 100. Learned Appellant?s counsel in his brief argued further stating that the proceedings of the 9th July, 2013 were not read and interpreted to the Appellant by the person sworn to interpret proceedings in the manner disclosed in the record of proceedings.
Under Issue No. 2, it was argued that leave was not sought and granted to prefer a charge as required under Section 185(b) of the Criminal Procedure Code. Learned Appellant?s counsel argued that in absence of leave being sought and granted as a precondition, will render the whole trial a nullity. He relied on decisions in Okafor v. State (1976) LPELR-2408 SC; FRN v. Wabara & Ors. (2013) LPELR-200083 (SC); Ibrahim v. State (2017) LPELR-42261 (SC). He further argued and submitted that consent to prefer a charge is a mandatory requirement. He urged us to so hold, allow this appeal, set aside the judgment of the trial Court and discharge and acquit the appellant.
Relying further on Okafor v. State (Supra) he argued that
5
an order for retrial cannot be made in the circumstances since there was no trial in the first place.
I have considered those submissions made by the learned appellant?s counsel in his brief of argument to which there is no contrary argument or submission. Issue No. 2 as raised and canvassed, touches on a fundamental question which affect the exercise of jurisdiction by the Court below to hear the case in the first place in the light of Section 185 of the Criminal Procedure Code which provides 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 provision of chapter xvii,
OR
(b) A charge is preferred against him without the holding of preliminary enquiries by leave of a judge of the High Court.?
The above stated provision can be seen as a percuser to any trial at the High Court. It must be complied with as a condition precedent and failure of compliance renders any or every trial in the High Court a nullity viewed from the mandatory nature the draftsman chose his language. The prosecution has no choice but ensure compliance before
6
embarking on any trial at the High Court.
The usual practice under S. 185 (b) of the CPC is to apply to the High Court for leave to prefer a charge against the person the prosecutor intended to proceed against. The application can be brought or made ex-parte and is accompanied by all relevant information including the charge or information by which the accused persons is committed for trial. The application is further accompanied by proof of evidence, list of witnesses, the prosecution intended to call and list of documents/Exhibits he would rely on, will equally be supplied. Upon the application being heard and leave granted, the coast would have been cleared for the prosecution to prefer a formal charge and arraign the accused person.
By the record of appeal before us at pages 1-7, is the application made to that effect but, it is not enough. It is just the first step. The prosecution must obtain leave of Court, by an order so positively drawn up in a ruling or decision of Court as to suggest that the application had been moved and granted. All these procedural steps shall reflect on the record of proceedings of the trial Court.
Proceedings
7
before the trial Court commenced on the 5th June, 2013. On the 9th June, 2013 the appellant appeared before the High Court and his plea was taken on the said date. See pages 7-8 of the record. There is however no semblance or anything on record that the High Court had before then taken or considered the application as it were, seeking the leave of Court to prefer a charge against the appellant let alone grant the leave the prosecutor may have sought.
This is a condition precedent to any valid arraignment or trial under the Criminal Procedure Code.
In the often cited locus classicus case, in Madukolu v. Nkemdilim (1962) LPELR-24023 (SC) the Apex Court, Per Bairamian, F.J held that:
?a Court is competent when (i) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any
8
condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.?
In the absence of prior leave sought and granted at the High Court, proceedings of the said Court leading to judgment, conviction and sentencing of the appellant is nothing but a wasted effort, null and void, as you cannot place something on nothing and expect it to stand. See Mcfoy v. U.A.C. (1961) 3 ALL E.R 1172.
This appeal succeeds on Issue No. 2 and there is no longer any need to address the question posed by Issue No. 1. The appeal is allowed.
In Okafor v. The State (supra), the Apex Court held thus:
?In the case in hand, the information was preferred without jurisdiction and the trial was a nullity. On that ground the Application for a new trial will be refused. Retrial implies that there was a former trial, and so this Court will not grant a new trial or (retrial) upon a trial which was null and void. See also: Okoro v. The Police (1953) 14 WACA 370.?
The same scenario has repeated itself in this case on appeal.
9
The trial Court lacked jurisdiction to hear the case as it did. The appellant is discharged.
That is the order and judgment.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour to read, in advance, the Judgment just rendered by my learned brother Saidu Tanko Hussaini, JCA. I agree that the appeal has merit.
It is clear that the charge in this case was irregularly preferred as no leave to so do was ever moved and granted by the Court below. Where such happens the entire proceedings and any decision made by the trial Court is liable to be quashed. The trial was a nullity. On that ground, and for the more detailed reasons in the leading judgment, the conviction of the appellant by the High Court of Kaduna State delivered on 30th September 2013 will be and is hereby quashed and the sentence is set aside. The appeal is allowed and the Appellant is accordingly discharged.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the Judgment of my learned brother, SAIDU TANKO HUSSAINI JCA. and am in agreement with my learned brother, that this appeal succeeds. I also
10
discharge the Appellant.
11
Appearances:
Abdulhamid Mohammed, Esq.For Appellant(s)
No AppearanceFor Respondent(s)
Appearances
Abdulhamid Mohammed, Esq.For Appellant
AND
No AppearanceFor Respondent
