GANDU v. COP (2020)

GANDU v. COP

(2020)LCN/14594(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/K/587/C/2016

RATIO

PLEADINGS: ARRAIGNMENT, REQUIREMENT AND VALIDITY

On the issue of validity or otherwise of the arraignment, there is no gainsaying the fact that a valid arraignment is a prerequisite to a valid trial. It is one of the fundamental requirements of a valid trial. If I may put it differently, a valid trial is posited on a valid arraignment. So fundamental is it to a trial that an arraignment is a jurisdictional issue, the absence of or a defect in which renders the whole proceedings a nulling. See EFFIOM VS. THE STATE (1995) 1 NWLR (PT. 373) 507; KAJUBO VS. THE STATE (1988) NWLR (PT.73) 721, which were reaffirmed by the recent decisions of the same apex Court –in the cases of FRN VS. OGUNROMBI (2019) LPELR – 47560 (SC) and FRN VS. ABUBAKAR (2019) LPELR – 46533 (SC).
It is for this fundamental nature of arraignment that it can be challenged even on appeal, as the Appellant has done in this appeal, notwithstanding that the appropriate stage to take the objection to a plea is before the trial. See EGBEDI VS. THE STATE (1981) 11 – 12 SC 98 and once so raised, the law enjoins the Court to first determine the issue and if sustained, to intervene by rendering justice to the accused/Appellant. See KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721; EYOROKOROMO VS. THE STATE (1979) 6 – 9 SC 3.
Now, the arraignment of an accused person before the Court simply means a procedure by which an accused person is brought before the Court unfettered to plead to the criminal charge against him and involves an interaction between the accused and the Judge who must read the charge and state its substance to the understanding of the accused and ask the accused to plead “guilty” or “not guilty”. An arraignment involves the taking of the plea of an accused. The plea is an accused/defendant’s formal response of guilty or not guilty or no contest to a criminal charge. It is the means by which an accused joins issues with the State on a criminal charge. OKEGBU V STATE (1979)11 SC 1.
Every criminal trial must therefore start with the opening statement by the Judge to the accused person of the description, substance or nature of the offence, or charge against him and the response of the accused thereto, which must be clearly recorded as stated by the accused person, to justify summoning him to the temple of justice, otherwise, a trial cannot have any legal effect. KAJUBO VS. STATE (Supra), CHUKWU VS. STATE (2005) 7 NWLR (Pt. 908) 520.
The requirements of a valid arraignment under the Sharia Criminal Procedure Code of Kano State are stipulated in Section 388 of the said Code. It provides:
When an accused person appears or brought before the Court, the particulars/detail of the offence of which he is being accused of shall be read over to him by the Court in a language he understands, and upon the Court’s satisfaction that the accused understands the accusation against him he shall be asked to make plea.
These Sharia Code Provisions are the same with Section 187 of the Criminal Procedure Code and Section 36 (6) (a) of the 1999 Constitution (as amended). By these Provisions, a valid arraignment as judicially interpreted requires the taking of 3 steps, namely:
a) that the accused is brought before the Court unfettered unless the Court shall see cause otherwise to order; (b) that the charge, or the information must be read over and explained to the accused in the language he understands to the satisfaction of the Court; (c) that the accused must be called upon to plea thereto unless there exists any valid reason to do otherwise, such as an objection to want of service of a copy of the charge/information where the accused is by law entitled to such service and the Court is satisfied that the accused has not been served.
the requirement that the Court be satisfied that the accused understood the charge as read and explained to him needs not be expressed on the record. It is only a guide to the trial Court and not a requirement which must be stated on the record. This is more so where the charge or the information was read in the language of the accused person. Similarly, though it is good practice and this is encouraged, to ask the accused whether he understood the charge as read and explained to him and to record the answer, the mere omission so to do by itself would not constitute non-compliance with the constitutional and procedural requirements except where the lack of understanding is apparent on the record. See IDEMUDIA VS. THE STATE (2015) ALL FWLR (PT. 800) 1302. Also reported as (1999) LPELR – 1418 (SC) @ PP. 32 -33 and also STATE VS. OLABODE (2009) 11 NWLR (PT. 1152) 254.
In the case at hand, as rightly held by the lower Court, the explanation made by the Appellant at pages 9 – 11 of the record which I shall deal with anon, puts it beyond argument that the Appellant understood the substance of the allegation against him as contained in the F.I.R. read out to him in the language he understands. Indeed the law is that an accused person who pleads guilty to a charge without any objection, as the Appellant herein did, understands the charge preferred against him. See OLAOLU VS. FRN (2016) 3 NWLR (PT. 1498) 133; ADEYEMI VS. THE STATE (2013) 14 NWLR (PT. 1373 129; OKEWU VS. FRN (2012) 2 SC Pt. 11) 1.
Moreover, this position is even stronger where as in this appeal there is evidence on record that the accused was represented by Counsel who defended him, the taking of the plea by the Court ought to be presumed in favour of the regularity such that even if it is not so stated on the record, it can be presumed that the charge had been read and explained to the accused on arraignment before his plea was taken. See IDEMUDIA VS. THE STATE (Supra). This is especially so where as in the instant appeal the Appellant was not only represented by Counsel, but there is something on record that the charge was read to the accused/Appellant. What is more, the Counsel who defended the Appellant did not raise any objection on the conduct of the arraignment but rather stated inter alia: “since he admitted the offence and these moneys he said were indebted, I have no objection but I have an application …”. The presumption “Omina Praesumuntor rite et solemniter esse acta”, applies here. See also Section 168 (1) of the Evidence Act which provides for the presumption as to the regularity of official acts. By it, when an official act such as an arraignment of an accused person, as in the instant appeal is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied with. Though a rebuttable presumption, which in this case inures in favour of the Respondent, the onus is on the party alleging the contrary to rebut the presumption which the Appellant has not been able to rebut. The lower Court rightly held that what transpired between the trial Court and the Appellant, the Appellant’s narrations and explanations to the trial Court on what gave rise to commission of the offence of criminal breach of trust, suggests that the Appellant fully understood the nature of the charges against him (see page 113 of the record). We agree with that view and finding of the lower Court. The other complaint against the arraignment is that only a single plea was taken to the two heads of counts instead of a separate plea to each of the two offences as held in the case of DUVALL VS. COMMISSIONER OF POLICE (supra) (1962) 2 ALL NLR (PT. 1) 116 AT 117.
Admittedly, the law is trite as submitted by the learned Counsel to the Appellant that where there are more than one counts, the accused must plead separately to each of the counts. In SHARFAL VS. THE STATE (1992) 7 NWLR (PT. 255) 510 Ogwuegbu JSC referring to the case of DUVAL VS. COMM. OF POLICE (Supra) stated the law thus:
“It is trite that where in a criminal trial the charge contains more than one count, each count must be read separately to the accused and he must plead separately to them…”.
It is also true that a single plea was taken by and recorded for the Appellant. It is however instructive to state that the essence of a separate plea to each count separately, is to empower the Court to convict and sentence the accused separately for each of the admitted counts, and to ensure that an accused person is not convicted for more than one head of count (in a formal charge) upon a single plea. What the law prohibits, is the conviction of an accused for more than one head of count (offence) in a formal charge, upon a single plea. For each separate head of count, there must be a separate plea, and this is the purport of the decision in the case of SHARFAL VS. THE STATE (Supra) as well as the case of DUVAILL VS. COP’s case (supra) cited by the learned Counsel to the Appellant. It is thus my firm view that where an accused is convicted for only one of the several offences to which a single plea is taken, the constitutional and statutory requirements are not violated and the conviction cannot be vitiated on that ground.
It is here on record that the Appellant was not convicted for the two offences of criminal breach of trust and cheating on the single plea. He was convicted only for the offence of criminal breach of trust. Thus, the case of DUVALL VS. COMM. OF POLICE (SUPRA) cited by the Appellants’ Counsel is inapplicable. Per AMINA AUDI WAMBAI, J.C.A. \

RATIO

PLEADINGS: CONFESSION AND CONFESSIONAL STATEMENT.

Now, Section 389 of the Sharia Panel Code provides:
If the accused confessed before the Court to the commission of an offence of which he is accused of, his confession shall be recorded as nearly as possible in the word used by him, and the Court may convict and sentence him accordingly.
Provided that the Court is satisfied that the accused has clearly understood the meaning of the accusation against him and the effect of his confession. A look at page 8 of the record shows full compliance with these requirements both in Section 389 (1) Sharia Criminal Procedure Code and those set out in Bahaja Vol. I. page 47 as the appellant pleaded guilty to the F.I.R. and same was duly recorded, and in the presence of two witnesses.
On whether the Court was satisfied that the Appellant clearly understood the meaning of the confession, the lower Court addressed that question and aptly answered same thus:
It is our view that in determining whether the accused understood the meaning of accusation against him and the effect of his confession, the entire proceedings have to be looked at. It will be absurd to consider the proceedings of the trial Court in isolation it shall be read as a whole. It is our firm belief that a careful look at the entire proceedings particularly from pages 1 – 5 and pages 10 – 12 of the record of proceedings where it is clearly shown that the accused knew the meaning of the accusation against him when he narrated how the whole transaction and the misappropriation took place admitting the amounts he misappropriated and agreed to pay back to the nominal complainant.
I am unable to find any fault with this reasoning which accords with mine. I am therefore in full agreement with the lower Court on this point.
Further, before convicting the Appellant on his admission, the trial judge proceeded to ask him the position of the money he pleaded guilty to, leading to his explanation of all that transpired, how much of the money was lost and how much was misappropriated and agreeing to pay an amount less than what he pleaded guilty to. This is what the Counsel finds fault with, and labeled as “extraction of confession” from the Appellant rendering the confession unacceptable both under Islamic law and the common law. He referred to an Islamic Book “Judicial System in Islamic Law” by M.L Navaid, chapter 4, page 154 where the author stated:
“And the Maliki require that admission be voluntary otherwise, it is invalid even if it would have led to the recovery of the victim in a murder or of stolen goods in robbery”.
There is no denying the fact that for a confession or admission to be admissible and relevant, it must be clear, direct, free and voluntary. Once a confession meets these requirements, it becomes acceptable and binding on the maker. This is the position in both the common law and the Sharia. Indeed in Sharia, as it is in common law, a voluntary confession is a better form of evidence than the evidence of witnesses and it is binding on the maker. It is settled law in Sharia that, a free admission/confession (Iqrar) made by a mature and sane person in favour of another is binding and enforceable against the maker once the admission is clear, devoid of any ambiguity or equivocation. See Fathul Aliyyel Mallik Vol. I Pages 39 – 40. See also Bidayatul Mujtahid Vol. II Page 352. See also HADA VS. MALUMFASHI (1993) 7 NWLR (PT. 303) 1 Per Wali JSC and the case of BABA VS. BABA (1991) 9 NWLR 248 where Okunola JCA (of blessed memory) also applied this Islamic principle. Similarly, in ABUBAKAR DAN SHALLA VS THE STATE (2007) 18 NWLR (PT 1066) 240, I.T. MUHAMMAD JSC (as he then was now the CJN) stated the Islamic Law position thus;
“… A sane and adult Muslim stands responsible and answerable to all his deeds or misdeed. Secondly, where he makes a free and voluntary confession, he is bound by his confession which is even regarded to be a better form of evidence than calling of witnesses. See VAWAHIR ATIKIL, SHARH MUKHTASAR AL- KHALIL VOL. II. BY SHEIKH SALIH ABD ALSAMI” AL ZHARI, PAGE 132.
Conversely, an ambiguous and involuntary confession/ admission is inadmissible, irrelevant and does not bind the maker. It is not evidence upon which to base a conviction.
In the case at hand, the Appellant voluntarily pleaded guilty to the First Information Report read to him and his plea duly recorded before being asked to explain the whereabout of the money to which he pleaded guilty.
It stands clear from the record that the argument of the Counsel to the Appellant that the Court embarked on extracting facts from the Appellant to establish his guilt cannot be correct. The argument most obviously, is made in total oblivion to the fact that the Appellant’s voluntary plea of guilty preceded the Court’s question and his explanation thereto. For the Appellants’ Counsel to correctly argue that the trial Court extracted confession from the Appellant, the confession must be a product of the Court’s question to the Appellant and not the other way round. As it is clear on record, the Appellants plea of guilty is not the product of the question nor did the question ignite the plea. It is preposterous to argue that the questions which were subsequent to the Appellant’s plea extracted the plea which it preceded. It follows that the questions did not, or in the words of the Appellant’s counsel “extract” any further confession from the Appellant in addition to what he had pleaded guilty to in the F.I.R. Rather, the answers to the questions only produced explanation as to how the offence to which he had pleaded guilty, was committed.
Furthermore, the proper value of that argument will be better appreciated in the light of the peculiar and unique procedure in Islamic law which empowers a judge to ask questions from parties to clarify whatever is not clear or is doubtful in order to understand the case of the Parties. The judge is not only permitted but is mandated to ask questions where necessary, to have a proper understanding of the case. It is also permissible for the judge to ask the accused person to make explanation concerning his confession provided that the questions do not amount to undue pressure or intended to make a person admit what he does not intend to admit. In the case of an appellate Court, this is not limited to issues raised by the grounds of appeal. The Court can look into the whole gamut of the case to discern where the justice of the case lies irrespective of whatever technicalities may be involved. This is what makes the Islamic Law Procedure peculiar and different from the Common Law Procedure. SeeBARAYA VS. BELEL (1999) 1 NWLR (PT. 585) 105 and the case of ABDU DAGACIN BELI VS. UMAR (2005) ALL FWLR (PT. 290) 1520 AT 1531 per Ba’aba JCA.
I cannot see anything on record from the questions asked of the Appellant and his answers thereto, that suggests any undue pressure or influence to make the Appellant admit to a further offence than the one already admitted. On the contrary, what is clear on record and is common ground is that the questions asked by the Court enabled the Appellant, through his explanation, to admit a lesser amount than the amount he originally pleaded guilty to as contained on the F.I.R. Per AMINA AUDI WAMBAI, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

RABI’U SHEHU SABUWAR GANDU APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Appellate Division of the Kano State High Court in Appeal No. K/4CA/2016 delivered on 12th May 2016, which overturned the decision of the Upper Sharia Court Gyadi Gyadi in Suit No. CR/64/2014 delivered on 07/06/2014, set aside the order of re-trial made by the Court and restored the decision of the trial Court (Sharia Court K/Kudi Kano), which convicted the Appellant for the offence of criminal breach of trust and sentenced him to two years imprisonment with an option of N50,000 fine in addition to payment of N10,142,700 compensation to the nominal complainant.

Peeved by the decision, the Appellant filed a notice of appeal on 22/06/2016 predicated upon 3 grounds. Auwalu Abubakar Mu’allimu Esq., who settled the Appellants brief of argument filed on 05/01/2017, distilled 3 issues for determination, namely:
1. Whether or not considering the facts and circumstances of this case, the learned justices of the Kano State High Court sitting on their appellate capacity were right in holding that the trial Sharia Court substantially complied with the

provision of Sections 388 and 389 of the Criminal Procedure Code (CPC) Amendment Law of Kano State 2000?
2. Whether or not considering the facts, circumstances of this case the learned justices of the Kano State High Court sitting on their appellate capacity were right in holding that the lower Court (Upper Sharia Court of Appeal) was wrong to have held that the trial Sharia Court confused the criminal proceedings with civil thereby occasioned miscarriage of justice?
3. Whether or not the errors complained of in this appeal constitutes the ground that will warrant this Court to overturn the decision of the lower Court?

The Respondent’s brief of argument filed on 20/03/2017 was settled by Nura Muhammed Fagge, Director Legal Drafting (DLD), Ministry of Justice, Kano State wherein 3 issues were submitted for determination, to wit:
Whether the lower Court was right to hold that there was valid arraignment before the trial Court;
Whether the lower Court was right when it held that the Respondent has proved the offences of criminal breach of trust and cheating beyond reasonable doubt;
Whether there were irregularities that are

material in the proceedings of the lower Court which may warrant the interference with the findings of the trial Court.

APPELLANT’S SUBMISSION
In arguing his Issue No. 1, learned Counsel for the Appellant reproduced the provisions of Sections 388 and 389 of the Kano State Sharia Criminal Procedure Code Amendment Law 2000, which he stated are similar to the provisions of Section 163 (3) of the Criminal Procedure Code and submitted that the trial Court failed to comply with the provisions in that:-
Firstly, the Court merely read out the F.I.R. but failed to comply with the mandatory requirement of explaining the details and ingredients of the offences to the accused/appellant before taking his plea as required by law which non-compliance led to failure of justice. He referred to the cases of OLADOJA VS. COMMISSIONER OF POLICE (1994) NWLR 264 and SHEHU VS. THE STATE (1978) NWLR 82.

Secondly, that the trial Court failed to read each of the two heads of charge separately to the Appellant nor took his separate plea to each count but merely take a single plea from the Appellant to the two heads of charge in contravention of the requirement

of valid arraignment thereby rendering the arraignment a nullity as decided in the case of DUVALL VS. COMMISSIONER OF POLICE (1962) ALL NLR 831.

Thirdly, that under Sharia (Islamic law), there cannot be a proper arraignment where as in the case at hand, the trial Court embarked on extracting facts from the Appellants to establish his guilt, moreso that the case is civil in nature (Mudaraba) where one party, the norminal complainant contributes financial capital and the other, the Appellant, contributes human capital and expertise with the investor bearing the liability for any loss in the absence of negligence from the agent. He referred to the Islamic Law book of “Business Organization Partnership” by Imrah Ahsan Khan Nyzee at page 243.

He further submitted that assuming the Common Law applies to the case, the requirements are the same under the Common Law, Section 36 of the Constitution of the Federal Republic of Nigeria (CFR) 1999 (as amended), prohibiting the Court from requiring an accused person to prove his innocence, citing in support the case of UNIVERSITY OF ILORIN VS. AKINROGUNDE (2006) ALL FWLR (PT. 302) 183 (C.A).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Fourthly, Counsel contended that the facts extracted from the Appellant through his answers to the questions put to him by the Court are not clear and unambiguous; that they amount to a denial of the accusation or retraction of any confession and suggests that the Appellant did not understand and did not mean to admit the accusation. He referred to Bahaja Vol. 1 page 47 and the case of AREMU VS. COMM. OF POLICE (1980) 2 NCR 315 on the Sharia requirements of a valid confession, namely:
(a) that it must be clear – unambiguous;
(b) there must be witnesses to attest to same;
(c) the judge must explain to the accused the consequences that will follow on his refusal or otherwise of the confession/admission.

Moreover, he submitted that assuming there was a valid confession/admission, the Appellant is permitted under Islamic Law to retract same and when so retracted, conviction cannot be based on the retracted confession/admission but the prosecution must bear the burden of proving its case against the accused person.

A further condition for a valid confession/admission under Islamic law he submitted, is that the confession/admission

must be freely and voluntarily made without pressure or compulsion but that the answers extracted from the Appellant were not of his free consent but were given under the pressure from the Court with a view by all means to recover the victim’s money. He referred to Chapter 4, page 154 of the book “Judicial System in Islamic Law” by M.I. Navid to argue that any such admission is invalid;

Stressing on the law that it is not the duty of the Court but that of the prosecution to embark on such an enquiry of recovering the money from the Appellant, he pointed out that the Appellant’s answers which the Court regarded as an admission at page 10 lines 1 – 8 of the record to wit:
“the money remains the total sum of N7,842,700.00k which I know that it losses (sic) in my possession and I will pay him …”
does not amount to an admission/confession upon which a reasonable Court/Tribunal can safely convict. OMUOHA VS. I.G.P. (1956) NRNLR 96. He submitted that what the trial Court ought to have done was to record the appellant’s plea as closely as possible and to convict him after taking his plea, citing in

support the case of DANIEL VS. FRN (2015) ALL FWLR (PT. 798) 970.

On the above premises, we were urged to hold that the lower Court misdirected itself in law in holding that the trial Court complied with the provisions of Sections 388 and 389 of the Kano State Sharia Criminal Procedure Code.

In arguing issues 2 and 3 together, learned Counsel contended that the lower Court was in error when it held that the Upper Sharia Court was wrong to have held that the trial Court confused Criminal Proceedings with a Civil one and turned a civil claim to a criminal one, when it ordered the Appellant to take an oath. According to him, the matter is more civil in nature than criminal considering all that transpired before the administration of I’izar. That a perusal of the F.I.R. (the Explanation to the case) shows that it does not contain the details and ingredients of the offences charged to make the Appellant appreciate the accusation against him which he agreed to have committed. Rather, the F.I.R. exposed three fundamental ingredients which qualify the matter as a civil one; namely:-
1. that the Appellant and the nominal complainant entered into

business of selling and buying furniture and complainant trusted Appellant;
2. that complainant gave Appellant the sum of N30,000,000.00 at first instance;
3. that the complainant appointed the Appellant as the person in charge of the shop.

Premised on the foregoing, Counsel submitted that the transaction between the Appellant and the nominal complainant was based on trust which outrightly rules out any suspicion (Tuhuma) therefrom, the Appellant having been appointed and acted as agent for the principal in carrying out the businesses, and thus, it is the principal and not the agent who is liable for any loss or damage to the property in the absence of any negligence on the part of the agent.

That a claim of suspicion (Da’awatul Tuhma) under Islamic Law can only arise in relation to money or other property with monetary value squandered in a situation where there is absence of trust, e.g. theft or usurpation etc. and where the commission of the alleged offence has not been proved for lack of evidence or on technical ground. He referred to Bahaja, a commentary of Tuhfatul Hukkam Vol. 1 page 154.

Learned Counsel argued that

assuming without conceding the alleged confessional statement of the Appellant was made in answer to the issue of monetary transaction, same does not impose criminal liability on the Appellant having been made in his capacity as a person entrusted with properties which was found to be lost under his possession. Again, he referred to Appellant’s alleged admission at page 10 lines 1 – 8 of the record earlier reproduced in this judgment and submitted that the trial Court ought to have treated the case as civil in nature and to follow the right procedure by:
(a) inquiring into and examining how those properties were lost –whether from negligence of the Appellant or not
(b) of identifying the actual amount missing; and
(c) at the end of the proceedings, to make an order for recovery of the missing money if the Appellant was negligent, in a civil trial and not in a criminal trial.

It was also the contention of the Appellant’s Counsel that from the series of questions and answers extracted therefrom, there was more to be done by the trial Court to fill in the gaps before administering I’izar but the Court assumed

that the matter was concluded when he admitted I’izar, contending that it is not enough to see the existence of I’izar on record, the record must reflect that all the necessary prerequisite of legal proceedings and all necessary findings were concluded before the administration of I’izar, since the Courts are enjoined in the interpretation of the law to adhere to the intendment of the law rather than the form. He stressed that failure to observe I’izar or observing same before the conclusion of all findings, renders any judgment arrived at as a nullity. He referred to Tuhfatul Hukkam (Guide to Advocates) translation and commentary, Part I Chapter 2, Page 39, Bahaja Vol. I page 16.

It was Counsel’s further contention that the lower Court went into speculation using its personal opinion or reasoning to ground or sustain the Appellant’s conviction when it embarked upon analogical deductions in search of the missing explanations, details and essentials of the ingredients of the offences. That such views or opinion expressed by the lower Court at page 117, – lines 20-24 upon which its findings was based has no legal

standing either textually or statutorily and cannot stand as an established rule of law to sustain the conviction; insisting that since the trial Court did not understand the nature of the claim, the defendant’s defence and the applicable law, the lower Court ought not to have affirmed such decision of the trial Court. For this submission, he referred to the book of Ihkamul Ahkam, a commentary of Tuhfatul Hukkam, that where the judge does not understand the subject matter he should either transfer the matter or consult mufti. He also referred to the same book where the author stated thus:
“It is not permissible for a judge who has not found a good ground for judgment in his proceedings to give out a verdict”.

Predicated upon all these errors allegedly committed by both the trial and the lower Courts ranging from lack of proper arraignment, to non-compliance with the rules of taking plea and confessional statement etc under Islamic law, which according to the learned Counsel seriously hindered the free flow of the basic principles of fairness and justice which occasioned a miscarriage of justice, Counsel argued that such proceedings

of the trial Court cannot be supported even under the Common Law.

In urging us to tamper with the concurrent findings of the trial and lower Courts and resolve the issue in favour of the Appellant, it was submitted that such irregularities as happened in this case which occasion a miscarriage of justice as described by the apex Court in the case of DAGACI OF DERE VS. DAGACI OF EBWA (2006) ALL FWLR (PT. 306) 802 and which if cured or corrected would affect such findings, warrants the voiding of the concurrent findings of the two lower Courts.

RESPONDENT’S SUBMISSION
Contrarily, it was submitted for the Respondent on the Issue No. I, that the Appellant was validly arraigned before the trial Court and the lower Court was right in holding that the trial Court complied with the provisions of Sections 388 and 389(1) of the Sharia Criminal Procedure Code, with nothing on record to show that the trial Court confused criminal trial with a civil one.

He submitted that a valid arraignment takes place where:
a. the accused is brought before the Court unfettered unless otherwise directed;
b. the charge is read out and explained to the

accused in the language he understands; and
c. the accused is called upon to plea instantly YUSUF VS. THE STATE (2011) 7 SCNJ 136.

These conditions he contended, were fulfilled by the trial Court. The requirement that the Court be satisfied that the accused understands the meaning and effect of his confession he argued, is a matter of fact to be inferred from the surrounding circumstances which cannot be challenged being a judicial act and that considering the entire proceedings and not just a part of it in isolation of the others, from the narration of the transaction by the Appellant, of how he misappropriated the amount of money entrusted to him and voluntarily admitted to pay back the amount misappropriated, shows that the Appellant understood the accusation against him and the implication of his confession. Learned Counsel contended that by the presumption of regularity in Section 168 of the Evidence Act, the trial Court properly administered the provisions of Sections 388 and 389 of the Sharia Criminal Procedure Code.

Counsel also submitted that the contention by the Appellant’s Counsel that the Appellant retracted his confession is

an afterthought same having not been raised at the Upper Sharia Court. That assuming though not conceding that the confession was retracted, the retraction is only relevant with regards to the right of Allah in the infliction of the “Hadd” punishment but the retraction cannot exonerate the Appellant on the payment of the compensation. He referred to Tabsiratul Hukkam, Part 2, Page 57.

We were urged to hold that the procedure in Section 388 was duly followed by the trial Court.

On his Issue No. 2, whether the lower Court was right when it held that the Respondent proved the offences of criminal breach of trust and cheating beyond reasonable doubt, it was submitted that the Respondent proved its case beyond reasonable doubt through the Appellant’s confessional statement and the Court properly convicted him based solely on the confession as supported by the Islamic Law principle stated in the book of Tabsiratul Hukkam (part 2) page 56 that “Admission is a better form of evidence than calling of witnesses” as applied in the case of ALHAJI UMARU HARUNA VS. DANLADI MAIDAJI S.L.R. (2006) (PT. 11) 39 AT 44;

ALH. ARI WAZIRI VS.HARUNA DUNDU GUMEL S.LR. (2006) 3 (PT. 1) 106.

On his Issue No. 3 whether there were irregularities that are material in the proceedings of the lower Court to warrant interference with the findings of the trial Court, Counsel submitted that the Court properly followed all the procedures under Islamic law in arriving at its decision with nothing on record to show that the trial Court confused the criminal trial with a civil one. He contended that assuming (though not conceding) that there were irregularities in the procedure followed by the trial Court before administering the oath of exculpation (Yamin At-huma), the irregularity cannot warrant interference with the proceedings of the trial Court because though the Appellant was convicted based on his confession, the trial Court went further in order to attain justice, to put questions to the Appellant akin to the questions put by Police to accusedperson during investigation, a procedure which he argued is proper, leading to the administration of the oath of exculpation (Yamin At-huma). He cited the cases of LASISI VS. THE STATE (2013) 7 SCNJ 310; SALAWU VS. THE STATE (2011) 7 SCNJ 67 at 87.

Learned Counsel argued that putting such questions to the Appellant to ascertain with fairness and justice the amount misappropriated and administering the oath of exculpation to exonerate him from the doubtful portion of the claim and before passing its judgment, learned Counsel further argued, does not vitiate the voluntariness of the confession.

It was Counsel’s further submission that the Appellant’s Counsel confused the arraignment procedure of taking plea on a charge with that of plea taking upon a F.I.R. and that in any case, the Appellant is deemed to have understood the charge preferred against him after taking his plea without any objection. OKEWU VS. FRN (2012) 2 SCJN 126 AT 115 and being represented by Counsel in Court who could have raised an objection but failed to do so at the trial Court, same cannot be raised on appeal. He referred to OGUNO VS. THE STATE (2013) 3 SCNJ 67 at70; MADU VS. THE STATE (2012) 6 SCNJ 129.

That Islamic law being a law of fairness and justice balancing between the right of the State and individuals the oath of exculpation was administered after the calculation of the money, exonerating the

Appellant from payment of the unadmitted sum of N8,550,000.00. Thus, according to him, contrary to the view held by the Appellant’s Counsel that Al’izar has to be administered before taking the Oath to avoid rendering it meaningless, the correct position of law is that Appellant’s submission applies purely in civil matters to “Yaminul Istihqaq” and not in criminal cases to Yamin at huma which should be administered before Al’izar, so as to accord the appellant full opportunity to defend himself. We were urged to so hold and resolve the issue in favour of the Respondent.

RESOLUTION OF APPEAL
Having summarized the argument canvassed in support of the issues formulated by both Counsel, it is apparent that the grudge of the Appellant’s Counsel revolves on the validity of the Appellant’s arraignment and confessional statement, the procedure adopted by the trial Court vis a vis the nature of the case and the propriety of the lower Court upholding the decision of the trial Court and upturning that of the Upper Sharia Court (the Court below).

The main issue therefore thrown up for determination of this

Court is whether the lower Court rightly affirmed the conviction and sentence of the Appellant by the trial Court and upturned the decision of the Upper Sharia Court by holding that the Appellant’s arraignment and his confession before the trial Court were in compliance with the provisions of Sections 388 and 389 (1) of the Kano State Sharia Criminal Procedure Code (S.C.P.C.), 2000 and the trial Court understood and rightly treated the nature of the case as criminal while properly observing the obligatory Sharia requirement of the Al’izar. If the answer is in the negative, whether the irregularities, if any, warrants the interference of this Court with the concurrent findings of the trial and lower Courts.
On the issue of validity or otherwise of the arraignment, there is no gainsaying the fact that a valid arraignment is a prerequisite to a valid trial. It is one of the fundamental requirements of a valid trial. If I may put it differently, a valid trial is posited on a valid arraignment. So fundamental is it to a trial that an arraignment is a jurisdictional issue, the absence of or a defect in which renders the whole proceedings a nulling.

See EFFIOM VS. THE STATE (1995) 1 NWLR (PT. 373) 507; KAJUBO VS. THE STATE (1988) NWLR (PT.73) 721, which were reaffirmed by the recent decisions of the same apex Court –in the cases of FRN VS. OGUNROMBI (2019) LPELR – 47560 (SC) and FRN VS. ABUBAKAR (2019) LPELR – 46533 (SC).
It is for this fundamental nature of arraignment that it can be challenged even on appeal, as the Appellant has done in this appeal, notwithstanding that the appropriate stage to take the objection to a plea is before the trial. See EGBEDI VS. THE STATE (1981) 11 – 12 SC 98 and once so raised, the law enjoins the Court to first determine the issue and if sustained, to intervene by rendering justice to the accused/Appellant. See KAJUBO VS. THE STATE (1988) 1 NWLR (PT. 73) 721; EYOROKOROMO VS. THE STATE (1979) 6 – 9 SC 3.
Now, the arraignment of an accused person before the Court simply means a procedure by which an accused person is brought before the Court unfettered to plead to the criminal charge against him and involves an interaction between the accused and the Judge who must read the charge and state its substance to the understanding of the

accused and ask the accused to plead “guilty” or “not guilty”. An arraignment involves the taking of the plea of an accused. The plea is an accused/defendant’s formal response of guilty or not guilty or no contest to a criminal charge. It is the means by which an accused joins issues with the State on a criminal charge. OKEGBU V STATE (1979)11 SC 1.
Every criminal trial must therefore start with the opening statement by the Judge to the accused person of the description, substance or nature of the offence, or charge against him and the response of the accused thereto, which must be clearly recorded as stated by the accused person, to justify summoning him to the temple of justice, otherwise, a trial cannot have any legal effect. KAJUBO VS. STATE (Supra), CHUKWU VS. STATE (2005) 7 NWLR (Pt. 908) 520.
The requirements of a valid arraignment under the Sharia Criminal Procedure Code of Kano State are stipulated in Section 388 of the said Code. It provides:
When an accused person appears or brought before the Court, the particulars/detail of the offence of which he is being accused of shall be read over to him by the Court in a language he understands,

and upon the Court’s satisfaction that the accused understands the accusation against him he shall be asked to make plea.
These Sharia Code Provisions are the same with Section 187 of the Criminal Procedure Code and Section 36 (6) (a) of the 1999 Constitution (as amended). By these Provisions, a valid arraignment as judicially interpreted requires the taking of 3 steps, namely:
a) that the accused is brought before the Court unfettered unless the Court shall see cause otherwise to order; (b) that the charge, or the information must be read over and explained to the accused in the language he understands to the satisfaction of the Court; (c) that the accused must be called upon to plea thereto unless there exists any valid reason to do otherwise, such as an objection to want of service of a copy of the charge/information where the accused is by law entitled to such service and the Court is satisfied that the accused has not been served.
The Islamic law requirement of a valid arraignment before the taking of a plea of the accused person which Section 388 of the Sharia Penal Code has codified, as stated by the author of the Islamic book

“Tuhfatul Hukkam” are essentially two viz:
1. The ascertainment of the nature of the case/Claim, whether it is definite and identifiable, for example if it involves money, whether the amount is specified; and
2. Full explanation of how the matter arose.
The Appellant’s Counsel contends that the set out requirements were not complied with by the trial Court; that the charge was not explained to the Appellant nor the ingredients detailed out before his plea was taken; that a single plea was taken to the two count charge; and that the trial judge extracted answers from the Appellant. It thus becomes imperative to refer to the relevant portions of the proceedings of the trial Court to ascertain and resolve these claims or complaints.
The proceedings of the Court on the day of the arraignment exhibiting the procedure adopted by the trial Court now being impugned, is at pages 7 – 8 of the record. It contains the following:-
“REASON FOR COMPLAIN: Criminal Breach of Trust and Cheating.
EXPLANATION TO THE CASE
On the 13/05/2014 at about 10:30am one Alh. Kabiru Yahaya Gwale come to the A.I.G. Zone 1 B.U.K.

Road, Kano with his complaint letter stating that sometimes in the year 2010 you Rabiu Shehu S/Gandu confront and met him where you want him to enter into business of buying and selling of furniture where he entrusted you and gave you the sum N30,000,000.00 in the first instance and he appointed you as the person who is in-charge of the shop in the year 2014 in the month of April calculation were made and discovered that the sum of N16,922,700.00 is not found and you converted same to your own personal used and you are no longer using the Bank which the complainant entrusted you to use. You also change the receipts and invoices where you print your own and you change your e-mail.
That is why you are arraigned before this Court and charge you with the above mentioned offenses.
Court to Accused: You are charged with the offences of criminal breach of trust and cheating. Are you guilty or not guilty to the charges?
Answer/Accused: I heard and agreed that I committed these offences.
Court: When it heard that, it appoint 2 witnesses for confession namely:
1. Alh. Basiru Ahmed Yakasai and
2. Mal. Halafi Sani Kabar”.

It is crystal clear from the reproduced portion of the record that the nature of the case put forward against the Appellant is criminal in nature (the case of criminal breach of trust and cheating) and he was taken to the Court unfettered. The complainant against him (the F.I.R.) was read to him in Hausa language, the language he understood, after which he was asked to make a plea to which he responded by pleading guilty to the charge.
It is also undisputable from the contents of the F.I.R. to which the Appellant pleaded guilty that in the year 2010 the Appellant was entrusted with the sum of N30m by the nominal complainant for a joint business of buying and selling furniture but when in April 2014, stock taking was made, the Appellant was discovered to have converted to his own personal use the sum of N16,922,700 and changed the Bank he was instructed to use, changed the receipts and invoices and printed his own, and changed his e-mail.
Undoubtedly, the above facts and particulars clearly spelt out in the F.I.R. and read to the Appellant in the language he understands, amply supply the ingredients of the offence of criminal breach of trust in

Section 202 of the Sharia Panel Code to which Appellant pleaded guilty and was convicted of. It reads:
“Whoever is in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly used or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied which he had made touching the discharge of such trust or unlawfully suffers any other person so to do, commits criminal breach of trust”.
The F.I.R. read out to Appellant having embodied these relevant facts and particulars of the ingredients of the offence, the argument of the learned Counsel is unfounded and is of no moment. It is absolutely devoid of any substance. Perhaps, the argument would have availed the Appellant had the F.I.R. not contained these much details of the series of acts allegedly done by the Appellant constituting the essential ingredients of the offence particularly of criminal breach of trust since the entrustment of the money to him.
Furthermore, the requirement that the Court be

satisfied that the accused understood the charge as read and explained to him needs not be expressed on the record. It is only a guide to the trial Court and not a requirement which must be stated on the record. This is more so where the charge or the information was read in the language of the accused person. Similarly, though it is good practice and this is encouraged, to ask the accused whether he understood the charge as read and explained to him and to record the answer, the mere omission so to do by itself would not constitute non-compliance with the constitutional and procedural requirements except where the lack of understanding is apparent on the record. See IDEMUDIA VS. THE STATE (2015) ALL FWLR (PT. 800) 1302. Also reported as (1999) LPELR – 1418 (SC) @ PP. 32 -33 and also STATE VS. OLABODE (2009) 11 NWLR (PT. 1152) 254.
In the case at hand, as rightly held by the lower Court, the explanation made by the Appellant at pages 9 – 11 of the record which I shall deal with anon, puts it beyond argument that the Appellant understood the substance of the allegation against him as contained in the F.I.R. read out to him in the language he

understands. Indeed the law is that an accused person who pleads guilty to a charge without any objection, as the Appellant herein did, understands the charge preferred against him. See OLAOLU VS. FRN (2016) 3 NWLR (PT. 1498) 133; ADEYEMI VS. THE STATE (2013) 14 NWLR (PT. 1373 129; OKEWU VS. FRN (2012) 2 SC Pt. 11) 1.
Moreover, this position is even stronger where as in this appeal there is evidence on record that the accused was represented by Counsel who defended him, the taking of the plea by the Court ought to be presumed in favour of the regularity such that even if it is not so stated on the record, it can be presumed that the charge had been read and explained to the accused on arraignment before his plea was taken. See IDEMUDIA VS. THE STATE (Supra). This is especially so where as in the instant appeal the Appellant was not only represented by Counsel, but there is something on record that the charge was read to the accused/Appellant. What is more, the Counsel who defended the Appellant did not raise any objection on the conduct of the arraignment but rather stated inter alia: “since he admitted the offence and these moneys he said were

indebted, I have no objection but I have an application …”. The presumption “Omina Praesumuntor rite et solemniter esse acta”, applies here. See also Section 168 (1) of the Evidence Act which provides for the presumption as to the regularity of official acts. By it, when an official act such as an arraignment of an accused person, as in the instant appeal is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied with. Though a rebuttable presumption, which in this case inures in favour of the Respondent, the onus is on the party alleging the contrary to rebut the presumption which the Appellant has not been able to rebut. The lower Court rightly held that what transpired between the trial Court and the Appellant, the Appellant’s narrations and explanations to the trial Court on what gave rise to commission of the offence of criminal breach of trust, suggests that the Appellant fully understood the nature of the charges against him (see page 113 of the record). We agree with that view and finding of the lower Court.

The other complaint against the

arraignment is that only a single plea was taken to the two heads of counts instead of a separate plea to each of the two offences as held in the case of DUVALL VS. COMMISSIONER OF POLICE (supra) (1962) 2 ALL NLR (PT. 1) 116 AT 117.
Admittedly, the law is trite as submitted by the learned Counsel to the Appellant that where there are more than one counts, the accused must plead separately to each of the counts. In SHARFAL VS. THE STATE (1992) 7 NWLR (PT. 255) 510 Ogwuegbu JSC referring to the case of DUVAL VS. COMM. OF POLICE (Supra) stated the law thus:
“It is trite that where in a criminal trial the charge contains more than one count, each count must be read separately to the accused and he must plead separately to them…”.
It is also true that a single plea was taken by and recorded for the Appellant. It is however instructive to state that the essence of a separate plea to each count separately, is to empower the Court to convict and sentence the accused separately for each of the admitted counts, and to ensure that an accused person is not convicted for more than one head of count (in a formal charge) upon a single plea.

What the law prohibits, is the conviction of an accused for more than one head of count (offence) in a formal charge, upon a single plea. For each separate head of count, there must be a separate plea, and this is the purport of the decision in the case of SHARFAL VS. THE STATE (Supra) as well as the case of DUVAILL VS. COP’s case (supra) cited by the learned Counsel to the Appellant. It is thus my firm view that where an accused is convicted for only one of the several offences to which a single plea is taken, the constitutional and statutory requirements are not violated and the conviction cannot be vitiated on that ground.
It is here on record that the Appellant was not convicted for the two offences of criminal breach of trust and cheating on the single plea. He was convicted only for the offence of criminal breach of trust. Thus, the case of DUVALL VS. COMM. OF POLICE (SUPRA) cited by the Appellants’ Counsel is inapplicable.

The next is the challenge to the validity of the confession made by the Appellant on the grounds that same was extracted from the Appellant after his plea; that the Appellant was not told the implication of his

confession; and that the Appellants’ statement does not constitute a confession but a denial of the allegation and even if a confession amounts to a retraction of same. In other words, that the confession was not in compliance with the law.
He referred to BAHAJA VOL. I P. 47 where the author stated the conditions of acceptability of a confession in Islamic Law, namely:-
a. that the confession must be clear;
b. there must be witnesses to attest (to the confession).
c. the judge must explain to him the consequences that will follow on his refusal or otherwise of the confession/admission
and contended that the Appellant’s confession is in breach or violation of these conditions.
Now, Section 389 of the Sharia Panel Code provides:
If the accused confessed before the Court to the commission of an offence of which he is accused of, his confession shall be recorded as nearly as possible in the word used by him, and the Court may convict and sentence him accordingly.
Provided that the Court is satisfied that the accused has clearly understood the meaning of the accusation against him and the effect of his confession.

A look at page 8 of the record shows full compliance with these requirements both in Section 389 (1) Sharia Criminal Procedure Code and those set out in Bahaja Vol. I. page 47 as the appellant pleaded guilty to the F.I.R. and same was duly recorded, and in the presence of two witnesses.
On whether the Court was satisfied that the Appellant clearly understood the meaning of the confession, the lower Court addressed that question and aptly answered same thus:
It is our view that in determining whether the accused understood the meaning of accusation against him and the effect of his confession, the entire proceedings have to be looked at. It will be absurd to consider the proceedings of the trial Court in isolation it shall be read as a whole. It is our firm belief that a careful look at the entire proceedings particularly from pages 1 – 5 and pages 10 – 12 of the record of proceedings where it is clearly shown that the accused knew the meaning of the accusation against him when he narrated how the whole transaction and the misappropriation took place admitting the amounts he misappropriated and agreed to pay back to the

nominal complainant.
I am unable to find any fault with this reasoning which accords with mine. I am therefore in full agreement with the lower Court on this point.
Further, before convicting the Appellant on his admission, the trial judge proceeded to ask him the position of the money he pleaded guilty to, leading to his explanation of all that transpired, how much of the money was lost and how much was misappropriated and agreeing to pay an amount less than what he pleaded guilty to. This is what the Counsel finds fault with, and labeled as “extraction of confession” from the Appellant rendering the confession unacceptable both under Islamic law and the common law. He referred to an Islamic Book “Judicial System in Islamic Law” by M.L Navaid, chapter 4, page 154 where the author stated:
“And the Maliki require that admission be voluntary otherwise, it is invalid even if it would have led to the recovery of the victim in a murder or of stolen goods in robbery”.
There is no denying the fact that for a confession or admission to be admissible and relevant, it must be clear, direct, free and voluntary.

Once a confession meets these requirements, it becomes acceptable and binding on the maker. This is the position in both the common law and the Sharia. Indeed in Sharia, as it is in common law, a voluntary confession is a better form of evidence than the evidence of witnesses and it is binding on the maker. It is settled law in Sharia that, a free admission/confession (Iqrar) made by a mature and sane person in favour of another is binding and enforceable against the maker once the admission is clear, devoid of any ambiguity or equivocation. See Fathul Aliyyel Mallik Vol. I Pages 39 – 40. See also Bidayatul Mujtahid Vol. II Page 352. See also HADA VS. MALUMFASHI (1993) 7 NWLR (PT. 303) 1 Per Wali JSC and the case of BABA VS. BABA (1991) 9 NWLR 248 where Okunola JCA (of blessed memory) also applied this Islamic principle. Similarly, in ABUBAKAR DAN SHALLA VS THE STATE (2007) 18 NWLR (PT 1066) 240, I.T. MUHAMMAD JSC (as he then was now the CJN) stated the Islamic Law position thus;
“… A sane and adult Muslim stands responsible and answerable to all his deeds or misdeed. Secondly, where he makes a free and voluntary confession, he is bound by

his confession which is even regarded to be a better form of evidence than calling of witnesses. See VAWAHIR ATIKIL, SHARH MUKHTASAR AL- KHALIL VOL. II. BY SHEIKH SALIH ABD ALSAMI” AL ZHARI, PAGE 132.
Conversely, an ambiguous and involuntary confession/ admission is inadmissible, irrelevant and does not bind the maker. It is not evidence upon which to base a conviction.
In the case at hand, the Appellant voluntarily pleaded guilty to the First Information Report read to him and his plea duly recorded before being asked to explain the whereabout of the money to which he pleaded guilty.
It stands clear from the record that the argument of the Counsel to the Appellant that the Court embarked on extracting facts from the Appellant to establish his guilt cannot be correct. The argument most obviously, is made in total oblivion to the fact that the Appellant’s voluntary plea of guilty preceded the Court’s question and his explanation thereto. For the Appellants’ Counsel to correctly argue that the trial Court extracted confession from the Appellant, the confession must be a product of the Court’s question to the

Appellant and not the other way round. As it is clear on record, the Appellants plea of guilty is not the product of the question nor did the question ignite the plea. It is preposterous to argue that the questions which were subsequent to the Appellant’s plea extracted the plea which it preceded. It follows that the questions did not, or in the words of the Appellant’s counsel “extract” any further confession from the Appellant in addition to what he had pleaded guilty to in the F.I.R. Rather, the answers to the questions only produced explanation as to how the offence to which he had pleaded guilty, was committed.
Furthermore, the proper value of that argument will be better appreciated in the light of the peculiar and unique procedure in Islamic law which empowers a judge to ask questions from parties to clarify whatever is not clear or is doubtful in order to understand the case of the Parties. The judge is not only permitted but is mandated to ask questions where necessary, to have a proper understanding of the case. It is also permissible for the judge to ask the accused person to make explanation concerning his confession

provided that the questions do not amount to undue pressure or intended to make a person admit what he does not intend to admit. In the case of an appellate Court, this is not limited to issues raised by the grounds of appeal. The Court can look into the whole gamut of the case to discern where the justice of the case lies irrespective of whatever technicalities may be involved. This is what makes the Islamic Law Procedure peculiar and different from the Common Law Procedure. SeeBARAYA VS. BELEL (1999) 1 NWLR (PT. 585) 105 and the case of ABDU DAGACIN BELI VS. UMAR (2005) ALL FWLR (PT. 290) 1520 AT 1531 per Ba’aba JCA.
I cannot see anything on record from the questions asked of the Appellant and his answers thereto, that suggests any undue pressure or influence to make the Appellant admit to a further offence than the one already admitted. On the contrary, what is clear on record and is common ground is that the questions asked by the Court enabled the Appellant, through his explanation, to admit a lesser amount than the amount he originally pleaded guilty to as contained on the F.I.R.
It must be borne in mind always that the essence of

trial in Islamic Law as in common law, is for the overall attainment of justice and fairness to all parties. Hence, the trial judge in his quest for attainment of fairness and justice, went the extra mile to ascertain the actual amount misappropriated by the Appellant which led the Appellant admitting an amount lesser than the amount he originally pleaded guilty to. The judge did not close its eyes to those facts but decided to consider them, and after calling upon the Appellant to swear to an oath of exculpation (Yaminul Tuhumatu) to exonerate himself from the unadmitted amount, he was ordered, after conviction, to pay as compensation, the lesser amount rather than the sum of N16,922,700 to which he initially pleaded guilty. Therefore, the fallout of the facts that emerged from the exercise which was intended to get a clearer picture of what happened rather than result in extracting further confession from the Appellant as erroneously alleged by the Appellant’s Counsel, resulted in enabling the Appellant, in the course of his explanation, to admit to a lesser amount than the amount already admitted in his plea which turned out to work in favour of the

Appellant rather than against him. That opportunity given to the Appellant can be likened to al’izar – an opportunity to say the last excuse. Thus, the argument of the Appellant’s Counsel that the confession was extracted from the Appellant lacks any substance and is discountenanced.
Counsel’s further argument is that the answers given by the Appellant do not constitute an admission but amount to a denial or a retraction of the confession on the ground that his explanations pointed to the fact that it was a loss incurred by the Appellant in the course of a business transaction of mudaraba upon trust which loss must be borne by the principal, thereby retracting the confession. I must say straight away that we are not in the least persuaded by this line of argument which does not flow with the tide of the admitted facts by the Appellant and the nature of the complaint against him. There is obviously a disconnect between the argument of the Appellant’s Counsel and the clear facts of fraudulent breach of trust stated in the F.I.R. and admitted by the Appellant and further strengthened by his explanation. It seems that the learned

Counsel only picked on the Appellant’s statement that the sum of N1,770,000 and some undisclosed amount was a loss resulting from a fall in price but conveniently glossed over or closed his eyes to the other parts of Appellant’s admission wherein he stated inter alia
“… I explained to him that I ordered for 2 containers but the fact is that I put only one. There is also the sum of N2,610,000 which I told him that I put, while I did not put. Whereas the 2nd container which I did not put cost N4,700,000 plus… my mistake is that I did not put such money but the remaining which he uses to put on top is with me but waste due to some loses incurred and general fall in prices…”
These admitted facts cannot in any way be said to amount to a denial or retraction of his earlier plea of “guilty” to the facts contained in the F.I.R. read out to him. They only strengthen his plea of guilty to the offence of criminal breach of trust. They do not and cannot support the Appellant’s submission that the matter is or ought to be treated as a civil wrong. The mere claim to “a loss” of part of

the money cannot be taken in isolation and even if so isolated, is incapable of transforming the criminal offence to a civil wrong.
In any case, for the purpose of restating the law, even in a civil matter a claim to a loss of entrusted money does not automatically absolve or exonerate the entrusted person from paying the lost money. The person so alleging the loss must prove by the required evidence how the money got lost since his statement only constitutes a statement of defence and not evidence in sharia.
See JATAU VS. MAILAFIYA (1998) LPELR – 1598 (SC); MAJOLUKU VS. ALAMU (1985) 84 L.R.N. 105; ALH. HADA VS. ALH. MALUMFASHI (1993) 7 NWLR (PT. 3031) I.
The Appellant’s Counsel also complained that the procedure adopted by the trial Court in administering the oath to the Appellant before Al’Izar is wrong and defeats the purpose of Al’Izar.
It is to be noted that in Islam, the burden of proof is on the accuser, the one who asserts. Thus, had the Appellant not admitted the offence, the complainant would have had to prove the case either by (a) two male impeachable witnesses; or (b) One male impeachable witness and

the claimant’s oath (the complimentary oath) or (c) One male witness and at least two female witnesses.
The Appellant’s plea of guilty to the offences stated in the F.I.R. obviated the need for the Respondent to prove the allegation against the Appellant since as earlier stated, the prophetic saying is that “admission is better than calling witnesses”. When later the Appellant denied some part of the money involved (not the plea of guilt), and the complainant did not offer to prove the denied amount of money, the judge was right in the circumstance in our view, to have asked the Appellant to take the oath of exculpation (Yaminul Tuhammat) to exonerate himself from payment of the unadmitted sum and to pay only the admitted amount, that is the amount proved by admission. That procedure is just and fair. The lower Court is thus right when it held:
“In the instant case the learned trial judge was right when the accused admitted misappropriating a particular sum of money and denied a particular sum he recorded his admission and appointed two witnesses for the admission and went further to direct the accused (Respondent) to

swear to the oath of exculpation in respect of the sum denied in order to free himself from the liability”.
As to the taking of the oath before the administration of Al’izar which Appellant’s Counsel contends is wrong, it is to be noted and emphasized that Al’izar is simply the last excuse or the last say given to parties to say anything they have to say or evidence they wish to give before the pronouncement of judgment. And this must be conducted before an accused person is convicted and sentenced. See the book of Ihkamul Ahkam, commentary on Tuhfatul Ahkam page 24 where the author stated.
“The last excuse is allowed litigants before judgment in the presence of two impeccable witnesses. This is the chosen view” and failure to conduct Al’izar vitiates the proceedings. See Tuhfatul Hukkam Chapter 7 Page 39.
The Appellant’s contention that the trial Court conducted Al’izar upon an inconclusive proceedings when the findings had not been concluded on the various claims of the parties contrary to the Rule in BAHAJA VOL. I Page 66 is misplaced and inapplicable here. In the first instance as the

record shows, the Al’izarwas the last act conducted by the Court after it became satisfied that the Appellant had, by his own admission, committed the offence and before conviction and sentence. The Court then asked the Appellant:
COURT: Accused/Counsel: Did you have any other things to say before the Court will pass its judgment?
ANSWER: I plead with the Court to temper justice with mercy on the punishment that would be passed on him as he has children and parents. (see pages 18 – 19 of the record).
Secondly, Counsel seems to have confused the criminal oath of exculpation (Yaminul Tuhumatu) which was administered on the Appellant with the complimentary oath, which is taken as a complimentary evidence to that of one credible witness.
In the case of the former, the preferred view is that the oath of exculpation (Yaminul tuhumatu) is taken before Al’izar for the accused to free himself from guilt as was done by the trial Court. This oath does not revert back to the accuser.
In the case of the latter (the complimentary oath), where the plaintiff is only able to produce one witness instead of two to establish his case,

the plaintiff is asked to subscribe to the complimentary oath which is regarded as one evidence to compliment the evidence of the one witness. It is in the case of a complimentary oath in civil cases that Al’izar is preferred to be conducted before the oath (Itihqaq).Therefore the authority relied upon by the Appellant’s Counsel in Bahaja Vol. 1 at Page 66 is inapplicable to this appeal.
What is obvious on the record is that Al’izar was properly conducted in the presence of two witnesses, after the Court had made a finding of guilt of the Appellant on his admission that the Appellant committed the offence and before conviction and sentence (see page 19 of the record).
All said and done, I find nothing wrong with the procedure adopted by the trial Court from the arraignment of the Appellant and his plea of guilty, to the questions asked by the Court and the Appellant’s answers thereto, resulting in his admitting a lesser amount than the amount on the F.I.R. to which he pleaded guilty, to the administration of the oath of exculpation exonerating him from culpability of the amount denied and the subsequent administration of

Al’izar before his conviction and sentence for criminal breach of trust for the lesser amount. The lower Court was therefore right in affirming the decision of the trial Sharia Court City No. 3 K/Kudu and upturning that of the Court below, the Upper Sharia Court Gyadi Gyadi. We find no merit in this appeal and have no reason to interfere with the decision of the lower Court. The effect is that we resolve the issues against the Appellant, and in consequence, dismiss the appeal being devoid of any merit. Resultantly, we affirm the decision of the lower Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance the leading Judgment of my learned brother Wambai JCA just delivered, to which I agree with entirely. The learned counsel for the Appellant has accused the lower Court for failure to understand the nature of the claims. I think counsel has confused lack of understanding the subject matter, with legitimate questions, a Judge under Islamic law procedure, is allowed or infact enjoined upon to ask, in order to ensure that the Appellant understood what he was standing in for. The record shows that the lower Court understood the nature of the case

before it. It was a criminal matter, not civil.

Again it is incorrect, as counsel for the Appellant had submitted, that the trial Judge had extracted confession from the Appellant. It was the Appellant who pleaded guilty to the offence of criminal breach of trust. The trial Judge afforded him the opportunity to explain, before convicting him. The Appellant explained the nature of the transaction with the complainant, the amount that was “a loss” and the amount he misappropriated. This was important and was in keeping with natural justice, so that the Appellant would not be found guilty of misappropriating the entire amount and compensation paid on it, since part of it, was as a result of loss. Facts should not be twisted.

Looking at the record, the lower Court had looked at the entire scenario and had come to the correct conclusion, meting out justice to the Appellant. We find nothing wrong in its findings of facts or application of the law. This appeal lacks merit and I too dismiss it. I affirm the decision of the lower Court delivered on 7th June, 2014.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading

before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing useful to add.

I agree that there is no merit in the appeal and I hereby dismiss same. I too affirm the judgment of the High Court of Kano State, sitting in its appellate jurisdiction, delivered in Appeal No K/4CA/2016 on the 12th of May 2016 by Honorable Justices Lawan Vada Mahmoud and Nasiru Saminu and which set aside the judgment of the Upper Sharia Court Gyadi Gadi and restored the judgment of the Sharia Court, Kofar Kudu, Kano.

Appearances:

AWUALU ABUBAKAR MU’ALLIMU, ESQ. For Appellant(s)

NURA MUHAMMED FAGGE DIRECTOR, LEGAL DRAFTING (DLG), MINISTRY OF JUSTICE, KANO STATE For Respondent(s)