MOHAMMED MAIDABO v. STATE
(2016)LCN/8489(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2016
CA/S/148C/2014
RATIO
APPEAL: ATTITUDE OF APPELLATE COURT TOWARDS FINDINGS OF FACT OF A TRIAL COURT
In determining this appeal, I shall bear in mind that finding of fact of a trial Court should not be disturbed unless they are perverse. See GABRIEL IWUOCHA & ANOR V NIGERIA PORTAL SERVICES LIMITED & ANOR (2003) 14 NSC QR 253 at 257; CHEDI V A-G FEDERATION (2006) 13 NWLR (PT 997) 308 at 325; BALOGUN V AGBOOLA (1974) 1 ALL NLR (PT 2) 66; BAMGBADE V BALOGUN (1994) 1 NWLR (PT 323) 718. This is because the trial Court had the opportunity of assessing the demeanor of the parties and their respective witnesses. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: CROSS-EXAMINATION; EFFECT OF FAILURE TO CROSS-EXAMINE A WITNESS
This witness was not cross-examined by the learned counsel for the accused, Sanusi Samaila, who was present in Court. It is trite law that this means the evidence of the witness has been accepted by the defence. See GAJI & ORS V PAYE (2003) 8 NWLR (PT 823) 583; OKORO V THE STATE (2012) LPELR- SC 187/2007. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
HEARING NOTICE: EFFECT OF PROCEEDINGS OF COURT DONE WITHOUT PROPER SERVICE OF HEARING NOTICE
On the 12th June 2014, when the Appellant’s written address was deemed adopted, the Appellant and his counsel were not in Court, because they were not served with hearing notice. Since they were not served, the lower Court had no jurisdiction to proceed with the hearing of the case. The act of deeming of the Appellant’s written address was carried out without jurisdiction.
In Miden System Ltd Vs Effiong (2011) 2 NWLR (Pt.123) 254 at 366 Paragraphs F-H, this Court per Mika ‘ilu JCA (of blessed memory) held:
“A Court has jurisdiction to hear a case when among other things, its jurisdiction is properly invoked by proper service of the Court process on the defendant. Where the defendant has not been served in accordance with the substantive and/or procedural law prescribes, then the jurisdiction of the Court is not properly invoked for it to entertain the case. Thus the issue of service is so fundamental that it goes straight to the jurisdiction of the Court”. See Mark Vs. Eke (2004) 17 NSCQR 60, (2004) 5 NWLR (Pt.865) 54.
The adoption of the Appellant’s written address in the circumstances of this case is an infraction of the Appellant’s right of fair hearing especially when the Appellant had no notice of the proceedings in which the written address was deemed adopted. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
MOHAMMED MAIDABO Appellant(s)
AND
STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the decision of Kangiwa J. of High Court of Justice Argungu delivered on 22/9/2014.
The appellant was the accused in Suit No KB/AR/1C/2013 before the said Court.
The accused was charged as follows
“That you MUHAMMAD MAIDABO “M” on or about the 30th day of December, 2011 at Kara Market Argungu within the jurisdiction of the Argungu High Court of Justice did commit culpable homicide punishable with death in that you caused the death of one JABBI BARTI by cutting down his right hand with your cutlass with the knowledge that death would be probable and not only the likely consequences of your act or any bodily injury which the act is intended to cause and thereby committed an offence punishable under Section 221 (b) of the Penal Code.”
After the plea of the accused was taken, both parties called evidence in support of their respective cases. After hearing the parties, the learned trial Judge found the accused guilty of the offence of culpable homicide punishable with
death and sentenced him accordingly.
Aggrieved, the appellant challenged the decision of the learned trial Judge on 4 grounds.
The grounds of appeal (shorn of the particulars) read as follows
“?Ground One
The Court below erred in law when it infracted on the constitutional right of the appellant to fair hearing and trial in public as enshrined under Section 36 (1), 36 (13) of the 1999 Constitution when it made use of written addresses of counsel without same being read in the open Court and this has occasioned a miscarriage of justice.
Ground Two
The Court below erred in law and prejudiced the constitutional right to fair hearing of the appellant as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 when it admitted as evidence, Exhibits 1, 2, and 6 without giving the appellant the opportunity to object to same before their admission and made use of the same convicting and sentencing the appellant to death and this has occasioned a miscarriage of justice.
Ground Three
The Court below erred in law when it failed to comply with the mandatory provisions of Section 274 of
the Criminal Procedure Code and thus has occasioned a miscarriage of justice.
Ground Four
The judgment of the Court below is unreasonable having regards to the evidence led and/or adduced at the trial.”
The record of appeal was transmitted to this Court on 19/12/2014 after which parties filed and exchanged briefs of argument.
The appellant?s brief of argument was filed on 11/3/2015. The brief was prepared by Ibrahim Abdullahi, appellant?s counsel.
Learned appellant?s counsel formulated 3 issues for determination.
The issues are:-
1. Whether the Court below had the jurisdiction and the appellant accorded the right to fair trial in public as enshrined under Section 36 (4) of the 1999 Constitution when the Court below ordered for written addresses to be filed and exchanged between the parties in a criminal matter? (This is decoded from ground one of the grounds of appeal).
2. Whether given the entire circumstances of the trial of the appellant at the Court below, the appellant was accorded a fair hearing? (This is decoded from ground 2 & 3 of the grounds of appeal)
3. Whether a case of
culpable homicide punishable with death was made out before the Court below to justify the conviction and sentence of the appellant to death? (This is decoded from ground 4 of the grounds of appeal).
On issue no 1, learned appellant’s counsel submitted that the right to fair hearing of the accused was infringed because the learned trial Judge did not take oral address in open Court. He relied on MIKAILU V STATE (2001) 5 WRN 74 at 84. He urged the Court to resolve the issue in favour of the appellant.
On issue no 2, the appellant’s counsel submitted that the accused and his counsel were not given the right to object Exhibits 2 and 2A before they were admitted as exhibits. He submitted that every party should be given the opportunity of being heard in the whole trial. He cited PAN AFRICAN INT’L INCORPORATION & ORS V SHORE LINE LIFT BOATS LTD & ORS (2010) 3SCNJ 179 at 187.
In further argument, learned counsel submitted that the Court below failed to comply with the mandatory provisions of the Section 274 of the Criminal Procedure Code as sentence and conviction were pronounced at the same time thereby depriving the
appellant the opportunity of making an allo cutus.
On issue no 3, learned appellant?s counsel submitted that the essential elements of the offence of culpable homicide were not proved. He cited JILA V STATE (2010) 4 NWLR (PT 1184) 217 and other cases.
He conceded that the prosecution proved that the deceased died but argued that the prosecution failed to prove that the act or omission of the accused caused the death of the deceased. He submitted further that the prosecution did not prove that the act or omission of the accused was intentional with knowledge that death was its probable consequence.
He challenged the reliance of the learned trial Judge on exhibits 2 and 2 (a) when according to him, the exhibits were admitted in breach of the accused right to fair hearing. He contended further that corroboration could not have been found for the retracted statements from the evidence of the PW3 ? PW6 who did not witness what happened.
?Learned counsel further submitted that the weapon used in the commission of the offence was never tendered and admitted as exhibit. He posited that proof of death must be unequivocal and
established unequivocally. He cited UDOSEN V STATE (2007) 23 WRN 50.
He finally urged the Court to allow the appeal.
The respondent?s brief which was settled by S. M. Kibo, Assistant Director of Public Prosecution was filed on 15/6/2015.
Learned Respondent?s counsel also formulated 3 issues for determination.
The issues are:
“1. Whether the trial Court had the jurisdiction and the appellant was accorded the right of fair trial in public as enshrined under Section 36 (4) of the 1999 Constitution when the Court below ordered for written addresses to be filed and exchanged between the parties in a criminal matter?
2. Whether given the entire circumstances of the trial of the appellant at the Court below was accorded a fair hearing?
3. Whether the prosecution has proved the offence of culpable homicide punishable under Section 221 (b) of the Penal Code beyond reasonable doubt to warrant the appellant to be convicted and sentenced to death.
?On issue No 1, learned respondent?s counsel submitted that the appellant was given opportunity to file and serve written addresses. He contended that the fact that
written addresses were filed in the Court and adopted cannot truncate the hearing of the appellant in public since address of counsel could not take the place of evidence.
On issue No 2, learned counsel submitted that counsel of the appellant failed to object when exhibits 2 and 2A were tendered by the prosecution. He contended further that it was now too late for the appellant to complain that he was not given opportunity to object to the statements. He relied on OMSUGHTER GBOKO LAWALI AUDU V STATE (2011) 6 NCC. 312.
Learned counsel further argued on the failure of the lower Court to comply with Section 214 of the Criminal Code, that the right of appeal was a mandatory constitutional right that could not be taken away from the appellant.
He urged the Court to resolve this issue in favour of the Respondent.
On issue No 3, learned Respondent’s counsel submitted that the prosecution proved the offence of culpable homicide. He added that the burden of proving all the ingredients was on the prosecution and it never shifted. He cited Section 138 of the Evidence Act. He relied on ADEKOYA V THE STATE (2011) 12WRN 127; SEGUN ODUNEYE V THE
STATE (2001) 15 NSQB.
He finally urged the Court to dismiss the appeal.
I have carefully considered the submissions of counsel as well as the contents of the record of appeal.
I have also considered the issues formulated by both counsel in their respective briefs of argument. I am of the respectful view that the rightness in law of the decision of the lower Court is what is being challenged. I shall therefore condense the issues into one “Was the learned trial Judge right in law to have convicted and sentenced the appellant having regards to the circumstances of the case before the Court.” In my view, this sole issue as framed is wide enough to cover all the issues necessary for the determination of this appeal.
In determining this appeal, I shall bear in mind that finding of fact of a trial Court should not be disturbed unless they are perverse. See GABRIEL IWUOCHA & ANOR V NIGERIA PORTAL SERVICES LIMITED & ANOR (2003) 14 NSC QR 253 at 257; CHEDI V A-G FEDERATION (2006) 13 NWLR (PT 997) 308 at 325; BALOGUN V AGBOOLA (1974) 1 ALL NLR (PT 2) 66; BAMGBADE V BALOGUN (1994) 1 NWLR (PT 323) 718. This is because the
trial Court had the opportunity of assessing the demeanor of the parties and their respective witnesses.
FACT OF THE CASE
I shall reproduce the facts as captured in the judgment of the learned trial Judge:
“The brief facts of this case are as follow: – on or about the 30th day of December, 2011, at Kara Market Argungu, the accused cut off the right hand of one Jabi Barti (now deceased) by using his cutlass. The accused came from the back of the deceased, struck him on the right hand with the result the hand being cut off from the rest of the body and as a result of this injury, the deceased lost a lot of blood and died on the same day on the way to Sokoto Special Hospital. Accused claimed that he attacked the deceased because he found him in his house the previous night looking for his wife. PW2 stated that he was together with the deceased discussing and laughing, when the accused person, when he suddenly saw the hand of the deceased being cut off and saw it on the ground and then he saw the accused person behind the deceased holding a matchet. He approached the accused person, then he the accused person started running and when he was
about to catch up with the accused, he threatened him and he became scared and shouted for help and people came and subdued the accused and was handed over to the police and they took the deceased to General Hospital Argungu for treatment with PW1, PW3, PW4, PW5.”
The learned trial Judge heard the parties and their respective witnesses and assessed their respective demeanor. The learned trial Judge was impressed by the witnesses for the prosecution. He said on page 88 of the record of appeal
“I therefore do not believe the evidence of DW1 and DW3 as witnesses of truth. I had earlier stated that DW2 testimony is hearsay. On the other hand. I believe and accept the evidences of prosecution witnesses. They impress as witnesses of truth. Their evidence is reliable, cogent and credible.”
Is the above finding perverse? PW1, Aliyu Garba, known as Aliyu Abubakar gave evidence that on 30/12/2011, he was at Kara Market Argungu when he saw the accused person running while holding a matchet without a sheathe. He also saw the victim, Jabbi Barti being carried out to the Hospital.
PW2 Garba Rugga on 30/12/2011 at Kara Market Argungu
when he saw the accused person running while holding a matchet. He joined in taking the deceased to the hospital. He observed that the deceased’s hand was cut off.
PW3, the wife of the deceased saw the deceased’s hand was cut off when she visited him in the Hospital.
PW4, Ladan Manu was also at Kara Market Argungu on 30/12/2011. He saw the accused when he came from the Western side and cut the deceased’s hand on the right shoulder.
PW5, Rugga Manu also witnessed the cutting of the hand of the deceased by the accused.
PW6, Corporal Sani Yusuf investigated the case. He visited the victim, He interviewed the accused. He cautioned him. The accused volunteered a statement which he read over to him.
The statement was tendered and admitted as Exhibit 2. The English translation was admitted as Exhibit 2A.
This witness was not cross-examined by the learned counsel for the accused, Sanusi Samaila, who was present in Court. It is trite law that this means the evidence of the witness has been accepted by the defence. See GAJI & ORS V PAYE (2003) 8 NWLR (PT 823) 583; OKORO V THE STATE (2012) LPELR
– SC 187/2007.
It should be noted that each of the above witnesses was believed by the learned trial Judge who saw and heard them.
For ease of reference, I shall reproduce the statement of the accused which was admitted as Exhibit 2A (The English Translation)
“I of the above name and address freely wish to make my statement as follows: – I was born and brought up at Badariya Village via Argungu Local Government Area of Kebbi State. I did not attend Western education but I attend Islamic Education, having one wife, God bless us with the one child, I could remember almost one month ago I travel to the area for cattle rearing on reaching the Yauri I fall sick then I returned back home, on reaching my room before entering inside I raise an alarm, to notified my wife, then someone came out from my room I flash him with the torch light, I recognise one Jabi Barti which he run away, I enter into my room I met my wife Nana was sleeping I wake her up and ask her who is just came out from the room, she replied to me that, if not me she did not see anybody from, since then I kept quite without reporting the matter to anybody, the following
day, I went Hospital in order to get a medicine for my sickness, when I get the medicine, and recovered, I decided to go back for my rearing, until Yesterday been Friday 30/12/2011 at about 1200pm. I arrived at Argungu cows Market, I dropped there, with intention to meet the said Jabi Bardi, who is fending my wife, because I belief no doubt he must come to the market when inter the market I just inserted him, he too saw me, by then he is possession of stick, while I am possession of my cutlass when we met I just removed my cutlass and cut him in his hand but I don?t know which hand I cut him all what I know is that, part of his hand has been removed as a result of that cut, he too also used his sticks and hit me on my forehead when he fall down I decided to run I was betting by unknown people, I fall down, then I was taken to Hospital, I don?t know anything by then, I was tell that I was taking to Hospital by police, it was later I found myself at police station Argungu, then I was tell that the said Jabi died on the way to Hospital as a result of that cut by me that all I know about, also upper from fending my wife I don?t have any problems
or ever with him that?s all about.”
The accused later gave evidence as DW1 he said inter alia
“When I returned as I was going into my house. I met Jabbi Barti holding a matchet in the night in my house and rushed towards me and I ran away. I was scared therefore could not pursue him. When I got inside my house I met my wife and asked who was the man that have just gone out. My wife told me, she did not know the person, from there I told her I know the person, he was Jabi Barti. The following day on Friday, we met in the Kara Market Argungu. I asked Jabi Barti what he was doing in my house in the night from there. He struck me on my forehead with a stick. The said Jabi heat me the second time and I raised my hand to protect it so the beating landed on my arm. From there I drew a matchet out of its sheathe when the said Jabi was about to strike me again, I struck him with my matchet on his hand. The relatives of Jabi rushed toward me and started beating me on my back.”
DW2, Alhaji Garba Badariya did not witness the incident.
Asmau Maidabo, was the wife of the accused. She confirmed that the deceased came to her
house but ran when he met her husband.
It should be noted that DW1-DW3 were disbelieved by the learned trial Judge.
After the close of defence, both counsel ask submission of written addresses. The case was adjourned to 11/6/2014 for adoption for addresses.
However, the next sitting of the Court was on 12/6/2014. This means the Court did not sit on 11/6/2014 when the matter was earlier adjourned to.
On 12/6/2014, learned counsel for the prosecution was present, counsel for the accused was absent.
The learned trial Judge allowed the counsel for the prosecution to adopt his written address but since the counsel for the accused was absent, he deemed the written address of the counsel for the accused as having been adopted.
The contention of the learned appellant’s counsel on this was that the right to fair hearing of the accused had been breached and that the proceedings of the Court had been vitiated by this error.
In MIKAILU V STATE (2001) 8NWLR, PART 715 at page 469, Abdullahi PCA had this to say on filing of a written addresses:
“The learned trial Judge did not take oral speeches of counsel in open
Court. Rather the learned trial Judge ordered written addresses which were exchanged amongst counsel representing the parties in the matter before her. The addresses that were filed and exchanged consequently upon the order of the Court were not subsequently read in the open Court, can this be said to be in compliance with clear and unambiguous or unequivocal provision of the Constitution? I do not think so… in my respective opinion. I do not think that the addresses exchanged by counsel and was not read in the open Court can be said to have met the demand of Section 331 (13) of the Constitution.?
Subsequently in GWAR V ADOLE (2003) 3NWLR (PT 808) 516 this Court explained the situation further that an adoption of a written address saved time made the addresses public. See also OBODO V OLOMU (1981) NWLR (PT 59) 111.
Again, in 2012, in OGUJI & ORS V UNUAGWU (2012) LPELR ? CA CA/OW/95/2009 This Court further held that a written address that was not adopted was as bad as a written address that was not ordered.
?If the above is applied to this case, it seems clear that in the circumstances of this case, the deemed adoption of
the written address of the counsel for the accused on a date which the case was not supposed to come up for hearing and there being no proof of service of hearing notice is an ineffective deeming. The written address of the accused’s counsel unfortunately remained unadopted.
The adoption of a written address gives life to it otherwise, it is constitutionally unacceptable. It has to be done in open Court. There is no provision for a deemed adoption.
A deemed adoption presupposes that the adoption was not done.
Black’s Law Dictionary defines the word deem thus:
“Treat (something) as if (1) were something else or (2) it had qualities that it does not have.”
It is important to note that a written address that is not adopted in open Court is irrelevant in the face of the authorities earlier cited.
It is either a party waives his constitutional right under Section 36 of the 1999 Constitution (Which is not the case in this appeal) or he adopts his written address in open Court, otherwise he has to orally address the Court.
An unadopted written address is a mere useless sheet of paper.
The learned
trial Judge having failed to sit on 11/6/2014, and having observed the absence of the learned counsel for the accused in Court on 12/6/2014 ought to have adjourned the hearing of the case to a further date and ordered fresh hearing notice to be served on the accused counsel. By failing to do this and proceeding to deem the written address of counsel for the accused as adopted, the learned trial Judge had infringed on the right to fair hearing of the accused and this definitely vitiated the whole proceedings.
In OYEKAN V AKIN RINWA (1996) 7 NWLR (PT.459) 128 Onu JSC. had this to say on this point
“In essence. What I am saying is that the proposition of the law that the denial of a party’s counsel (Where established and proven) of the opportunity of addressing that Court is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing thereby rendering the proceedings a nullity vide OBODO V OLOMU (1987) 3 NWLR (PT.59) 111.”
It is unfortunate that despite all the brilliant efforts of the learned trial Judge to do justice in this case, his lordship failed to exercise enough patience in ensuring
the presence of learned counsel for the accused to adopt his written address in open Court.
It is for the above reason alone that I resolve the sole issue in favour of the appellant.
This appeal has merit. I hereby set aside the proceedings judgment and sentence of the lower Court in KB/AR/HC/1C/2013 decided on 22/9/2014, I hereby order a retrial.
Suit No KB/AR/HC/1C/2013 THE STATE V MUHAMMAD MAIDABO is remitted back to the Chief Judge of Kebbi State for reassignment to another High Court Judge other than Hon. Justice Ibrahim A. Kangiwa for retrial.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Awotoye, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat. On the 12th June 2014, when the Appellant’s written address was deemed adopted, the Appellant and his counsel were not in Court, because they were not served with hearing notice. Since they were not served, the lower Court had no jurisdiction to proceed with the hearing of the case. The act of deeming of the Appellant’s written address was carried out
without jurisdiction.
In Miden System Ltd Vs Effiong (2011) 2 NWLR (Pt.123) 254 at 366 Paragraphs F-H, this Court per Mika ‘ilu JCA (of blessed memory) held:
“A Court has jurisdiction to hear a case when among other things, its jurisdiction is properly invoked by proper service of the Court process on the defendant. Where the defendant has not been served in accordance with the substantive and/or procedural law prescribes, then the jurisdiction of the Court is not properly invoked for it to entertain the case. Thus the issue of service is so fundamental that it goes straight to the jurisdiction of the Court”. See Mark Vs. Eke (2004) 17 NSCQR 60, (2004) 5 NWLR (Pt.865) 54.
The adoption of the Appellant’s written address in the circumstances of this case is an infraction of the Appellant’s right of fair hearing especially when the Appellant had no notice of the proceedings in which the written address was deemed adopted.
On the basis of the reason I have set out hereinabove and the more elaborate reasons in the judgment of my learned brother, Awotoye JCA, this appeal shall be and it is hereby allowed. The decision of the lower Court is hereby
set aside and quashed. I endorse all the consequential orders made in the lead judgment.
MUHAMMED LAWAL?SHUAIBU, J.C.A.: I entirely agree.
Appearances
Ibrahim Abdullahi, Esq.For Appellant
AND
S. M. Kibo (Asst. Dir. Pub. Pro.) Esq.For Respondent
