MOHAMMED v. STATE & ORS (2021)

MOHAMMED v. STATE & ORS

(2021)LCN/15072(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/YL/135C/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

UMAR MOHAMMED APPELANT(S)

And

THE STATE 2. ALIYU ARDO 3. SHUAIBU ABUBAKAR 4. SADIQ MIJINYAWA 5. SAIDU ABUBAKAR 6. SANUSI IBRAHIM EMMASON 7. SANI MUSA 8. KABIRU ABDULLAHI RESPONDENT(S)

RATIO

WHETHER AN ACCUSED PERSON MUST BE PRESENT IN COURT DURING THE WHOLE OF HIS TRIAL

… the presence of an accused person jointly charged with other accused persons is essential at every stage of the trial up to judgment and the only exception is where he so misconduct himself and the Court finds it necessary to dispense with his presence or he is of unsound mind. This legal requirement is encapsulated in Section 153 of the Criminal Procedure Code Law of Adamawa State provides: “every accused person shall, subject to the provisions of Section 154, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.” PER JAMILU YAMMAMA TUKUR, J.C.A.

POSITION OF THE LAW AGAINST THE COURT PROCEEDING WITH THE TRIAL IN THE ABSENCE OF SOME OF THE ACCUSED PERSONS BEING JOINTLY TRIED

In the State v. Lawal (2013) 7 NWLR (Pt. 1354) 565, the Supreme Court in its pronouncement on the issue under discourse emphasized the mandatory legal requirement of the presence of an accused person in Court throughout his trial thus: “In the case at hand with regard to the errors of law on the face of the record the inferior Court or Tribunal, it is quite clear from the proceedings of the trial Senior Magistrate of 14th June, 1999 at page 21 of the record of Appeal that the 1st Respondent Senior Magistrate I record the 1st accused person absent while 2nd, 3rd and 4th accused persons were present. As all the four accused persons were jointly charged particularly in the charge of Conspiracy and were being jointly tried, the 1st Respondent ought not to have proceeded with the trial in the absence of 1st accused person even though the hearing of that day was for address.” The Apex Court went further to pronounce on the effect of proceeding with the trial in the absence of some of the accused persons thus: “The very fact that the 1st Appellant and 3rd Appellant were absent in their joint trial in Court on 14th June, 1999 when the inferior Court was addressed and on 18th April, 2000 when the inferior Court delivered its judgment this exercise of allowing the trial to proceed in the absence of some of the accused persons being jointly tried had rendered the entire proceedings of that Court including the judgment a complete nullity for not only denial of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 but also for failure of that Court to give the affected Appellants even a hearing that may not be called a fair hearing.” PER JAMILU YAMMAMA TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Adamawa State delivered on 16th January, 2019 in case No. ADSY/9c/2017 Coram Waziri J. wherein the Appellant together with eight others (one at large) were tried, convicted and sentenced to death for the offences of Conspiracy and Armed Robbery contrary to Section 6(b) and 1 (2) (a) of the Robbery and Firearms (Special Provision) Act Cap R11 LFN 2004. Aggrieved with the decision, the Appellant appealed to this Court by a Notice of Appeal filed on 11th April, 2019.

The Amended Notice of Appeal was filed on 2nd June, 2020 and deemed properly filed and served on 3rd June, 2020 but was withdrawn and struck out on 12th November, 2020.

The extant further Amended Notice of Appeal was filed on 16th October, 2020. The Appellant’s Amended Brief of Argument was filed on 16th October, 2020 wherein the following issues were distilled for determination thus:
ISSUE No. 1:
Whether the trial Court was right to have jointly tried and convicted the Appellant, together with the 2nd to 8th Respondents in the absence of the 9th Convict

(Distilled from ground 6).
Issue No. 2:
Whether the trial Court was right when it relied solely on the confessional statement of the Appellant and that of the co-convicts to convict the Appellant without proper evaluation to give weight to it. (Distilled from Ground 2).
Issue No. 3:
Whether the trial Court was right in holding that it was not necessary to tender the items recovered having regards to the circumstance of the case. (Distilled from Ground 5).
Issue No. 4:
Whether the trial Court properly evaluated the evidence adduced by lumping up the evidence adduced without evaluating the weight of evidence available against the Appellant separately (Distilled from Ground 4).
Issue No. 5:
Whether in the light of the totality of the evidence adduced and the circumstances of the case, the trial Court was right to convict the Appellant in the absence of a proper identification parade/evidence. (Distilled from grounds 3 and 7).
Issue No. 6:
Whether the trial Court was not in error to hold that the Prosecution had proved its case beyond reasonable doubt. (Distilled from ground 1).

Issue No. 7:
Whether the trial Court was not wrong to have admitted and given weight to Exhibit E (the Dane Gun) when same was not linked in any way to the case against the Appellant. (Distilled from Ground 9).
Issue No. 8:
Whether the trial Court was right in holding of the discrepancies in the date of the robbery were not material. (Distilled Ground 8).

The 1st Respondent’s Amended Brief of Argument was filed on 5th November, 2020.

Learned counsel for the 1st Respondent nominated a lone issue for determination:
“Whether the trial Court was right to have convicted the Appellant based on the totality of evidence adduced by the 1st Respondent before the trial Court in proof of the offence of conspiracy to commit armed robbery and armed robbery.” (Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8 & 9 of the Appellant grounds of appeal).

The other Respondents did not filed any brief of argument. The Appellant in response to the issue raised in 1st Respondent’s brief filed a Reply brief on 11th November, 2020.

Learned counsel for the Appellant raised a preliminary question related to the competence of the trial conducted in

the lower Court under issue one thus:
“Whether the trial Court was right to have jointly tried and convicted the Appellant, together with the 2nd to 8th Respondents in the absence of the 9th convict.”

This is a threshold issue that must be disposed of first as it touches on the competence of the entire trial at the lower Court. In his argument under the issue, learned counsel for the Appellant relying on the decision of the Supreme Court in the case of State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 at 586 and the Provision of Section 153 of the Criminal Procedure Code Law of Adamawa State submitted that in any criminal trial, the presence of the defendant is mandatory and that trial means the entire trial from arraignment to judgment and further that the mandatory presence of the accused person throughout his trial admits of very few exceptions as highlighted in the decision of the Apex Court in State v. Lawal (supra).

Learned counsel further argued that the Appellant was charged jointly with the 2nd – 9th accused persons in the lower Court and that on the day of their arraignment on 3rd April, 2017 the 9th accused person Abdu Ojulu was

recorded as being absent and no explanation was given for his absence. Learned counsel stated that at the proceedings of 26th April, 2017 the 9th accused person was also absent from Court.

Learned counsel further submitted that there was no record to show that the 9th accused person was ever arraigned nor was his plea ever taken. There was also nothing to indicate that the 9th accused person entered his defence or waived his right to do so, and that even on the day judgment was delivered the 9th accused person neither in Court nor represented and there was no explanation offered for his absence.

Learned counsel submitted that the requirement of the law where one accused person is absent during a joint trial had been effectively dealt with via the provisions of Section 254 of the Criminal Procedure Code Law of Adamawa State which provides that the Court may at any stage of the trial where there are several accused by order in writing stating the reasons therefore stay the proceedings of the joint trial and may continue the proceedings against each or any of the accused separately.

Learned counsel contended that the learned trial judge failed to

follow the procedure stated under Section 254 of the Criminal Procedure Code Law of Adamawa State and that the failure amounts to breach of right to fair hearing and renders the entire proceedings a nullity. Learned counsel cited the following cases in support of his arguments viz State v. Lawal (Supra); Sule v. State (2018) 10 NWLR (Pt. 1628) 545 At 566 – 567; Ngadi v. FRN, 2018 LPELR 43636 (CA) PP 79 – 82. Learned counsel finally urge us to resolve the issue in favour of the Appellant.

Learned counsel for the 1st Respondent submitting on the issue argued that it is an essential principle of Criminal Law and Procedure that the trial of an accused person for an offence has to be conducted in the presence of the accused person and that trial means the whole of the proceedings including the judgment and sentence.

Learned counsel argued that the only exception is where the violent tendencies of an accused person may warrant keeping him out of Court in the interest of public safety for peaceful conduct of the trial.

Learned counsel cited the cases of Mohammed v. State (2018) 5 NWLR (Pt. 1613) SC 540 at 544 (P. 573, Paras F-G);

State v. Lawal (2013) 7 NWLR (Pt. 1354) 564 at 575 ratio 10 (PP 595-566 G. E).

Learned counsel submitted that the Appellant alongside the 2nd – 8th Respondents were present throughout the duration of the trial and that the 9th accused person was never arraigned nor his plea taken because he was at large throughout the duration of the trial.

Learned counsel finally argued that since the eight accused persons that were arraigned before the lower Court were present throughout the trial, the allegation of lack of fair hearing is not sustainable.
Learned counsel urged us to resolve the issue against the Appellant.

RESOLUTION OF THE ISSUE
Learned counsel on both sides are in my view in concord in their submissions on the requirement of the law that in criminal trials, the presence of an accused person jointly charged with other accused persons is essential at every stage of the trial up to judgment and the only exception is where he so misconduct himself and the Court finds it necessary to dispense with his presence or he is of unsound mind.
This legal requirement is encapsulated in Section 153 of the Criminal Procedure Code Law of Adamawa State

which provides:
“every accused person shall, subject to the provisions of Section 154, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”
A cursory look at the record showed clearly that on 3rd April, 2017, the day the accused persons were arraigned in the lower Court, the 9th accused person Abdu Ojulu was recorded as absent, and there was indeed no explanation regarding his absence. The trial proceeded and nothing in the record shows that the 9th accused person was ever present and there is nothing on record to indicate that his name was struck out or that the proceedings against him was either stayed or suspended up to the day when judgment was delivered by the lower Court.
Learned counsel for the Appellant had forcefully argued relying on the decision of the Apex Court in State v. Lawal (supra), that the conduct of the entire trial in the absence of the 9th accused person who was jointly charged with the other accused persons is a nullity.

2000 when the inferior Court delivered its judgment this exercise of allowing the trial to proceed in the absence of some of the accused persons being jointly tried had rendered the entire proceedings of that Court including the judgment a complete nullity for not only denial of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 but also for failure of that Court to give the affected Appellants even a hearing that may not be called a fair hearing.”
It is thus clear to all that in a joint trial of accused persons as in the instant case each and everyone of them must be shown to be present at his trial excepting the circumstances mentioned in Section 153 of the Criminal Procedure Code Law of Adamawa State. That is where the accused so misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. It follows therefore that the entire proceedings from the arraignment of the Appellant and the other accused persons up to the judgment and sentence is a nullity and liable to be set aside. It is worthy to note that this Court in a sister Appeal No.

CA/YL/221C/2019 Between Sanusi Ibrahim Emmason v. The State & Ors delivered on 14th December, 2020 (unreported) followed the same path as pronounced by the Apex Court, when it held that the trial conducted by the lower Court in the absence of the 9th convict who was tried, convicted and sentence to death in absentia was a nullity, set same aside and remitted the case to the lower Court for a fresh trial.
It is also against this background that I hold that the entire trial proceedings leading to the conviction of the Appellant in the lower Court is a nullity and the end result is that I find the Appeal meritorious and same is allowed. I also set aside the entire trial for being a nullity. The case is hereby remitted to the chief Judge of Adamawa State for re-assignment to a Judge of the State High Court other than Waziri J for a fresh trial.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft copy of the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion. I also hold that the case be remitted to the Chief Judge of Adamawa State for re-assignment to a Judge of the State High Court other

than Abdulazeez Waziri J., the trial Judge who heard and determined the case before the lower Court, for a fresh trial.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

Chief L. D. Nzadon, Esq., with him, V. G. Abasiodiong, Esq. For Appellant(s)

A. Jada (DPP), with him, D. I. Kulthu State Counsel II Adamawa State Ministry of Justice For Respondent(s)