In The Court of Appeal
(Kaduna Judicial Division)
On Thursday, the 20th day of December, 2012
Suit No: CA/K/18/C/2010
ZAKARI YA'U Appellant
THE STATE Respondent
ABDU ABOKI, J.C.A.: (Delivering the Leading Judgment):
This is an appeal against the judgment of Kaduna State High Court delivered on 28/10/2010 by G.I. Kurada J whereby the appellant was convicted and sentenced to death for the offence of Armed Robbery.
The charge against the Appellant who was the 3rd accused person and three other accused persons he charged along with, is adumbrated as follows:
That you MOHAMMED IBRAHIM (M), YAKUBU UMAR (M), ZAKARIYA'U (M), HUSSAINI (M) (at large) on or about the 22nd of March 2001 at Tafa village Kagarko Local Government Area of Kaduna State conspired together to rob LIBABATU ABDULAHI (F), HADIZA MUSA (F) and HADIZA AHMADU (F) and thereby committed an offence punishable under section 97 of the penal code law and triable by the High Court of Justice, Kaduna State.
That you MOHAMMED IBRAHIM (M), YAKUBU UMAR (M), ZAKARIYA'U (M), HUSSAINI (M)
(at large) on or about the 22nd of March 2001 at Tafa village Kagarko Local Government Area of Kaduna State committed and illegal act to wit:
You robbed LIBABATU ABDULLAHI (F), HADIZA MUSA (F) and HADIZA AHMADU (F) white armed with sticks and other weapons and stole the sum of N54,600.00 and other valuables and in the process also beat one Nasiru Alfa who later died in the Hospital and by so doing committed the offence of ARMED ROBBERY punishable under section
11 sub-section (2) (a) and (b) of the Robbery and Firearms, Act Cap 398, Laws of the Federation of Nigeria, 1990".
The 4th accused person Hussaini, who has been at large never appeared throughout the trial. At the close of the case for the prosecution, learned counsel to the accused persons made a no case submission which was upheld in respect of the 1st and 2nd accused persons only, and they were discharged while the appellant ZAKARI YA'U was called upon to enter his defence. The judgment now being appealed against therefore relates only to the 3rd accused person, Zakari Ya'u.
In convicting the appellant, the trial Court said inter-alia thus:
"The accused was however not charged for conspiracy to commit an offence under the penal code, but rather, for an offence of Armed Robbery. I think that this is improper, in my respectful view. The Robbery and firearms Act also makes provisions for offences of conspiracy, aiding and abetment, counseling or procuring person to commit offences under the Act. There is therefore no good legal bases for charging the accused under the penal code for conspiracy to commit Armed Robbery. I will therefore, and do hereby discharged and acquit the accused on Count one of the charge. I however, find the accused guilty as charged on count (2) of the charge and I hereby convict him accordingly on Count two. "
I hereby sentence the convict, Zakari Ya'u, to death by suffering death by firing squad or by hanging by the neck till he be dead, as the Executive Governor of Kaduna State may direct in accordance with section 1(2)(a) of the Robbery and Firearms, Act, Cap 398 Laws of the Federation of Nigeria, 1990, and may the Good Lord have merry upon you."
Aggrieved by this decision of the Lower Court the Appellant who is now a prisoner on the death roll at Kaduna Prisons filed a notice of Appeal dated 27th April 2009 pursuant to the leave granted him by this Court on 20th day of April 2009. The said notice of Appeal contained three grounds of Appeal and they are hereby adumbrated as follows:
GROUND OF APPEAL
"1. The Judgment of the trial Court is unwarranted, unreasonable and cannot be supported having regard to the evidence".
"(a) Between 19/3/2003 and 28/10/2005 when the trial took place, at no point in time was the plea of the
Appellant taken by the trial Court.
(b) The Appellant being an illiterate who does not understand English Language (being the official language of the Court) was not properly arraigned before the trial Court.
2. The learned trial Judge misdirected himself when he said in his Judgment that:
"...the two witnesses did not recover Exhibit b, which is the sum of N5,760.00. The Pw1 said the first 100 recovered the money. He also said that it was recovered from the first accused (who has already being discharged) The Pw2 said, the money was transferred to their office along with the case file and accused persons..."
"(a) The evidential burden of proof beyond reasonable doubt was not discharged by the prosecution,
(b) There was nothing before the Court to support the veracity of the confessional statement of the accused (Appellant).
(c) The refusal of the prosecution to call the eye witnesses and victims of the alleged armed Robbery in support
of its case ought to have made the trial Judge to treat Exhibit 3 AND 34 with grave caution.
(d) The claim of the learned trial Judge that he over heard the conversation between the accused and his counsel cannot form part of the evidence before the Court to convict the accused.
(e) The retracted confessional statement of the accused cannot replace the burden of proof in a serious case
that caries DEATH SENTENCE".
3. The learned trial Judge misdirected himself when he said in his Judgment that,
"...I have no doubt in my mind that the accused committed the offence charged. I hold that the prosecution has proved the two count charge beyond reasonable doubt as required by law...'
While in another breath, the learned trial Judge said "....I will therefore and do hereby discharge and acquit the accused on count one of the charge. I however find the accused guilty as charged on count two (2) of the charge and I hereby convict him accordingly on count two'.
"(a) The learned trial Judge made up his mind to convict the accused since 27/7/2004 even before the accused entered his defence."
"(b) Since the other accused persons alleged to have conspired with the Appellant were discharged for the offence of conspiracy, the Appellant ought to be discharged from the second count".
"(c) The learned trial Judge has doubt about guilt or otherwise of the Appellant and this is why there were conflicting pronouncement on him and this doubt ought to be resolved in favour of the Appellant".
Parties to this appeal exchanged their respective brief in accordance with the rules of the Court.
The Respondent's brief contains a notice of preliminary objection. There was no reply to the preliminary objection. Learned counsel for the Respondent urged the Court to uphold the preliminary objection.
It is trite that where a Respondent as in the present case raises a preliminary objection in his brief of argument the objection must be considered first before any further step is taken towards the determination of the Appeal. See Adetoro vs Ogo Oluwa Kitan Trading Co. Ltd (2000) 9 NWLR (Part 771) page 157. Iwara vs Itam (2009) 17 NWLR (part 1170) page 337 at 372-378.
It will therefore be most prudent to consider the preliminary objection raised by the Respondent before taken a look at the issues raised by parties to this appeal for determination.Learned counsel for the Respondent contended
in the notice of preliminary objection, that issues 1 and 2 in the Appellant's brief of argument are incompetent and deserve to be struck out.
The grounds of the objection reads as follows:
1.'(i) Ground 1 of the Notice of Appeal is by no means related or connected howsoever with the particulars supporting it'.
'(ii) Ground I of the Notice of Appeal is christened in law as an omnibus ground of appeal and issue No. 1, being a substantive issue of law must derived from a substantive and valid ground of appeal'.
'(iii) The particulars supporting ground 1 must derive from the ground which is not the case herein'.
2.' (i) Ground 3 of the notice of appeal and the particulars supporting it are atomistic (sic) to the issue formulated
as issue No.2 as there is no any correlation between the issue as formulated and the head (vis-a-vis the
particulars) of ground 3 of the ground of appeal'.
On the first ground of the objection learned counsel for the Respondent contended that an issue formulated by a party must take its root from a valid ground of appeal just like particulars supporting a ground of appeal must of necessity, succinctly states or outline or elaborate the complaint of the Appellant on a particular ground. The
Court was referred to the cases of
Okpala v. Ibeme (1989) 2 NWLR (part 102) 208.
Adehi v. Atega (1995) 6 SCNJ 44 and
Obun vs Ebu (2006) All FWLR (part 327) 419
Learned Counsel submitted that ground 1 of the Appellants notice of appeal is in law referred to as an omnibus ground. He argued that an omnibus ground is directed or targeted as the evaluation or appraisal and the ascription of probative value to the evidence adduced before the trial Court.
Learned Counsel argued that particulars 1 and 2 furnished by the Appellant to support ground 1, have no nexus with what ground 1 portends.
He argued that the issue of the improper arraignment of the Appellant at the trial court cannot properly, in law, be said to have derived from a ground that is omnibus in nature and that it pertains to the evaluation and ascription of probative value to evidence adduced, learned counsel maintained that the issue of proper or improper arraignment of the Appellant was not an issued of evidence adduced before the trial Court.
He insisted that an omnibus ground (which ground 1 of the grounds of appeal is) cannot sustain or give rise is a specific point of law such as arrangement of the Appellant. The Court was referred to the case of Calabar East Corporative Vs Ikot (1999) 14 NWLR (Pt 638) 225.
Learned counsel argued that the particulars supporting ground 1 and the issues formulated from the purported ground 1 are not related. He contended that it is not from the particulars that issues are formulated but from valid grounds of appeal. He argued that since the ground of appeal is not at par with the particulars supporting it and the issues formulated from the said ground 1, the argument in support of the issue formulated remains incompetent. Learned Counsel submitted that the ground 1 is to be regarded and held to be abandoned and should be struck out.
The Appellant did not file a reply to the preliminary objections raised by the Respondent in the circumstances, the conclusion to be drawn is that the Appellant has no answers to the objections and is deemed to have accepted them as correct. The result in such a circumstances will be to dismiss the appeal straight away.
In the instant case in view of the death penalty imposed on the Appellant this Court has a duty to examine the objection which have not been responded to, probably due to negligence or inadvertence of counsel to the Appellant, to see if answers could have been provided but for the negligence or inadvertence of his counsel.
Learned counsel for the Respondent has raised the objection that the issue of the improper arraignment of the Appellant at the trial Court cannot properly, in law, be said to have derived from a ground of appeal that is omnibus in nature. The issue of the proper or improper arraignment of the Appellant was not an issue of evidence adduced before the trial Court. It is settled that omnibus ground cannot sustain or give rise to a specific point of law such as arraignment of the Appellant. See. Bhojsma Plc vs Daruel-kaho (2006) 5 NWLR (Pt 973) page 330; Calabar East Corporative v. Ikot (1999) 14 NWLR (Pt.638) page 225.
In the instant case although the issues postulated by the Appellant are inappropriate or inadequate having regard to the grounds of appeal filed, but in view of the death sentenced imposed on the appellant the Court has a duty to identify the appropriate issue in the circumstance of this case. See: Ifabiyi vs. Adeniyi (2000) 5 sc 31 at 42. U.P.S. Ltd. vs Ufot (2006) 2 NWLR (Pt 963) page 1.
The issue of non arraignment of the Appellant is an issue of jurisdiction which can be raised at any point in time and even at the hearing of an appeal.The second issue of the objection states that issue 2 does not derive from ground 3 of the notice of appeal. Learned counsel for the Respondent submitted that it is trite that issues formulated in brief must of necessity derived from a valid notice of appeal and that where the contrary is the case as in the instant case, the argument canvassed in support of that ground goes to no issue and liable to be struck out. The Court was referred to the case of Adehi vs Atega (supra),
Jatau vs Ahmed (2003) FWLR (Pt. 151) page 1887. It has been argued on behalf of the Respondent that the head of ground 3 of the notice of appeal from where the Appellant contended issue 2 was derived, is the conclusion of the trial Courts drawn from the evidence adduced at the trial and its assessment of the guilt or otherwise of the accused (now Appellant),
Learned counsel submitted that an issue not derived from a ground of appeal, deserves nothing but to be discountenanced and struck out. The Court was referred to the cases of Madumere vs Okafor (1996) 4 SCNJ 73 at 80. Union Bank of Nigeria Plc (2005) All FWLR (Pt 257) page 1435 at 1448.
Learned counsel for the Respondent urged the Court to struck out issues 1 and 2 in the Appellant brief of argument as the two issues are incompetent because issue 1 cannot be distilled from an omnibus ground of appeal and issue
2 is potently not distilled from ground
3.It is settled principle that arguments are to be canvassed on the basis of the issues formulated and not on the ground of appeal. See.
Aja vs Okoro (1991) 7 NWLR (Pt 203) page 260.
Adeyeri II vs Atanda (1995) 5 NWLR (Pt 397) page 512 at 518,
Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) page 126.
Koya vs UBA Ltd (1997) 1 NWLR (Pt 481) page 251at 253.
Amadi vs NNPC (2000) 6 SC (pt 1) page 66.
In an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue more often than not, it takes a combination of such facts or grounds to raise an issue.
The test is whether the legal consequences of that ground or fact or a combination of those grounds or facts as framed by Appellant, if decided in his favour will result in a verdict in his favour. See. Ibori vs Agbi (2004) 6 NWLR (Pt 868) page 78.
It is trite that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. It is only when issues are not related to any ground of appeal that they become irrelevant and go to no issue. I am of the opinion that where they are related to any ground of appeal which can be located from the grounds of appeal such issues are arguable and should not be struck out, particularly when such issues concern substantial issue of law such as jurisdiction.In the instant case issue 2 though improperly distilled from ground 3 can still be accommodated underground 1 while issue 1 improperly housed in ground 1 can be accommodated under ground 2.
An issue for determination is a combination of fact and circumcises. It includes the law on a particular point which when decided one way or the other affects the fate of an appeal. See. Onifade vs Olayiwola (1990) 7 NWLR (Pt 161) page 130.
In Admin. Gen, Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) page 366 it has been held that an issue for determination in an appeal is a substantial question of law or fact or both arising from the ground of appeal filed in the appeal which, when resolved one way or the other, will affect the result of the appeal.In the instant case the Appellant must not be driven away from the judgment seat, moreso when his appeal involved substantial issue of law. Technical issues such as those raised by the Respondent in his notice of preliminary objection should not be allowed to defeat the determination of this Appeal on its merit.
The preliminary objection in the circumstance of this case is therefore overruled.
The preliminary objection having been determine, I will now focus attention on the consideration of the Appeal.
The appellant's brief of argument prepared by Akinlolu Kehinde Esq. was dated 25/2/2010 and filed 6/4/2010 but deemed filed on 14/4/2010. Learned counsel for the ppellant adopted the said brief as the appellant's argument in this appeal and urged the Court to allow the appeal,
The Respondent's brief of argument prepared by Ademola Adeniji Esq. was dated and filed 14/4/2011.
Learned counsel to the respondent adopted the said brief as the respondent's argument in this appeal and urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
The Appellant in his brief of argument raised three issues for determination from the three grounds of appeal contains in his notice of appeal and they are hereby adumbrated as follows:
(a) Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice. Ground 1.
(b) Whether the attitude of the trial Judge in recording the alleged conversation between the accused and his counsel and relying on same to convict him is not in breach of the Appellants right to fair hearing and unbiased adjudication by the lower Court. Ground 3.
(c) Having regard to the totality of the evidence, was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed Robbery. Ground 2.
The Respondent on its part adapted the Appellant issue C as the only issue for determination in this appeal. The issue is reproduced as follows:
'Having regard to the totality of the evidence was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed robbery (Ground 3).'
The Appellant's issue (b) can conveniently be accommodated in his issue (c). I will for the purpose of determination of this Appeal adopt the Appellant's issue (a) and (c) and they are hereby renumbered as issues 1 and 2 respectively as follows: -
1. "Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice."
2. "Having regard to the totality of the evidence, was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed robbery".
'Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice.'
Learned counsel for the Appellant submitted on this issue that a careful study of the records of the Lower Court clearly showed that the Appellant was not arraigned and his plea was never taken. He argued that this omission is very fatal to the prosecutions case.
The Court was referred to the provisions of sections 187(1) and (2) of the criminal procedure code and the case of Kalu vs State (2002) 3 LRC NCC at vol.3 page 39 where the conditions for a valid arrangement of an accused person were set out. The conditions are adumbrated as follows:
"(1). The accused must be place before the Court unfettered unless the Court shall see cause otherwise.
(2). The charge or information shall be read and explain to him to the satisfaction of the Court by the Registrar or other Officer by the Court.
(3). The accused person shall then be called upon to plead instantly thereto (unless of course there exist any valid reason to do otherwise such as objection to want of service where the accused person is entitled by law to service of a copy of a information and the Court is satisfied he has in fact not be duly served therewith"
Learned counsel for the appellant maintains that all these conditions were never satisfied in this case, no record that the accused person was presented unfettered, the charge read over and explained to him in Hausa language which was the language of his election and no plea was taken from the appellant.
It was submitted that in Durwodi v. The State (2000) 12 SC (Pt. 1) page 1 the Supreme Court stated that the most essential aspect of a criminal trial is the compliance with section 36(6) of the 1999 constitution of the Federal Republic of Nigeria. That the constitutional provision requires that every person charged with a criminal offence shall be informed promptly in the language he understands in details of the nature of the offence.
Learned counsel maintained that the trial Court must record the plea of the accused as rearly as possible in the words used by him and that in the instant case, there is nothing on the record that the plea was recorded at all.
Learned counsel argued that this omission is not mere irregularity but fundamental and that it strikes at the root of the entire proceedings before the lower Court and that the decision reached by the lower Court is without jurisdiction because of lack of taking the plea of the Appellant before the commencement of the trial.
He submitted that the issue of plea in a criminal trial is sine qua non to the case and goes to the deepest root of the proceedings itself, Learned counsel cited in support of his submission the case of F.B.N. Plc vs. Tsokwa (2004) 5 NWLR (Pt 866) page 271.at 302.
Learned counsel insisted that there is always the need for obedience to the rule of law and that the Courts are bound to follow due process of law. The Court was referred to the case of Equity Bank of Nig. Ltd vs. Halilco Nig. Ltd (2006) All FWLR (Pt 337) at page 438.
The Court was urged to resolve this issue in favour of the Appellant and to affirm that failure to arraign the Appellant in Court and his plea taken in the language he understands is very fatal to the trial and has consequently caused a miscarriage of Justice.
In response on behalf of the Respondent, learned counsel stated that the record of Appeal in this case was brought in pursuant to a motion, at the instant of the Respondent dated 8th day of June, 2010 and filed on the 11th day of June, 2010. The motion was argued and granted on 16th February, 2011 whereby the Court ordered the Registry of the Court below to produce the hand-written version of the record of proceedings of the Court below. Learned counsel informed the Court that the record has still not been provided as ordered.
Learned counsel for the Respondents conceded that an accused person must by section 187(1) of the Criminal Procedure Code be brought before the Court at the commencement of the trial and the charge read over and explained to him and his plea taken concerning the charge and that, that is what arraignment entails. The Court was referred to the cases of Oguneye v. The State (1999) 5 NWLR (Pt. 604) page 548 and Solola v. The State (2005) 2 NWLR (Pt. 937) page 460.
Learned counsel maintained that from the record before the Court, the trial of the Appellant commenced on the 27th of July, 2004 and that from the proceedings of that day, nothing appeared to show that the charge was read to the accused and his plea taken, but it does not mean that the charge were not read to the appellant. He argued that the hand written record of the trial Court which was ordered to be produced but not produced would have revealed otherwise. Learned counsel invited the attention of the Court to the judgment at page 29 of the record where it was shown that the appellant was not only present in Court but also represented by counsel O.E. Ogunniran Esq. He argued that by virtue of the provisions of section 150(1) of the Evidence Act there is a rebuttable presumption of law that the arraignment of the appellant on the 27th July 2004, was substantially in accordance with the law. The Court was referred to the cases of
Agwarangbo v. Nakade (2000) 9 NWLR (Pt. 672) page 341
Abatan v. Awudu (2004) All FWLR (Pt. 236) page 215 and
Necha v' Independent National Electoral Commission (2000) FWLR (Pt. 12) page 2062 at 2071.
Learned counsel urged the Court to hold that contrary to appellants submission, that the lower Court had the jurisdiction to try the appellant and that the trial of the appellant before the trial Court did not contravene section 187 of the Criminal Procedure Code,
He further argued that the record of the trial Court is not supposed to be a carbon copy of all that happened in the cause of the proceedings. Cited in support of his submission are the cases of Soluade v. Commissioner of Police (2007) 7 NWLR (Pt. 712) page 432;
Dibie v. The State (2007) 9 NWLR (Pt. 138).
Learned counsel submitted that the argument of the appellant regarding the trial Court lack of jurisdiction on the proceeding leading to the conviction and sentence of the appellant on the issue of appellant's arraignment constitute nothing but allusion to mere technicality.
He maintained that judicial attitude presently abhors technicality. The Court was referred to the case of Orok v. The State (1984) 9 SC page 7 at 8.
In practice, arraignment comprises reading over the charge or allegation over to the accused and his making a plea thereto. See Oyediran v. Republic (1967) NMLR 122.
Arraignment is the most crucial stage of any criminal proceedings because criminal trials commence at arraignment. See: Fawehinmi v. Inspector-General of Police (2000) FWLR (Pt. 12) 2015.
In Edibo v. State (2007) 13 NWLR (Pt. 1051) page 306 at 326. The Supreme Court, per Tabai JSC said:
"The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the read for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity".
See: Sanmabo v. The State (1967) NMLR 314;
Alake v. The State (1991) 7 NWLR (Pt. 205) page 567;
The State v. Madokola (1972) 2 ECSLR 426.
In Nwafor Okegbu v. State (1979) 11 SC 1 at 9 the Supreme Court held per Irekefe JSC:
"It is only when an accused pleads either guilty or not guilty as the case may be, that issues are joined in criminal trial, and until this happen, he is technically outside the pace of the Court's jurisdiction".
In criminal trials before the High Court, the criminal procedure code made specific provision as follows:
187"(1). When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged"
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused".
The requirement for arraignment is not optional but mandatory. The failure by a Court to observe the procedure would render the entire proceedings a nullity ab initio. See Sanmabo v. The State (supra).
In Udo v. State (2006) 15 NWLR (Pt. 1001) 179 at 189-190 the Supreme Court reiterated the requirements of a valid arraignment as follows:
"(a). That the accused must be placed before the Court unfettered:
(b). The charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the Court.
(c). The accused shall then be called upon to plead instantly to the charge, unless there is a valid reason not to do so".
These three requirements above must co-exist and failure to comply with any one of them will render the trial a nullity.
See: Amanchukwu v. Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1029) page 1 at 16 - 17;
Kalu v. State (2002) 3 LRC NCC vol. 3 page 39;
Idemudia v. State (1999) 7 NWLR (Pt. 610) page 202;
Kajubo v. State (1988) 1 NWLR (Pt. 73) page 721
These requirements are mandatory provisions must be strictly complied with in all criminal trials.
See: Solola v. State (2005) 2 NWLR (Pt. 937) page 460;
Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385.
In Olabode v. State (2009) 11 NWLR (Pt. 1152) Page 254 it has been held that the requirement that the charge shall be read and explained to the accused person to the satisfaction of the Court is not violated by reason only that the record of proceedings failed to indicate that the judge was so satisfied.
The law is firmly settled that in the absence of any evidence to the contrary, when a charge is read to the accused person and he makes his plea which is recorded by the Court before proceeding to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction. Thus it is only desirable and not mandatory to have the satisfaction of the Court on record. In Solola v. State (2005) 2 NWLR (Pt, 937) page 460 at 493 - 494, the Supreme Court held per Edozie JSC:
"In the absence of any evidence to the contrary, when a charge is read to the accused and he makes his plea and the Court records his plea and thereafter proceeds to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction"
In the instant case it is the contention of the appellant that he was not arraigned by the Court and that his plea was never taken.The appellant and other co-accused persons first appeared before the High Court of Justice, Kaduna State,
Kaduna on 19th March 2003, The Court proceedings of that day and of subsequent days the case came up for hearing are reproduced as follows:
"IN THE HIGH COURT OF JUSTICE KADUNA STATE
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA.
SUIT NO. KDH/9XC/2002
1. MOHAMMED IBRAHIM
2. YAKUBU UMAR
3. ZAKARI YA'U
4. HUSSAINI (AT LARGE)
1st, 2nd and 3rd Accused present, speak Hausa
M. D. Joseph Esq: (State Counsel) for the State.
Dabo Pate Lere affirmed to interpret from English to Hausa and vice versa.
Joseph: The case is for motion and by the nature of the offence, which is a capital offence, the accused must be represented by counsel
Accused: We cannot get a lawyer on our own
We pray the Court to get one for us.
Court: Case adjourned to 16/4/03 for further mention. The Registrar shall write to the legal Aid council for legal representation of the accused.
1st, 2nd and 3rd Accused present, speaks Hausa.
4th Accused at large.
M. D. Joseph: State counsel, for the prosecution
O.E. Ogunniran: for the 1st accused (holding A. A Ashit's brief) and appearing for the 2nd and 3rd accused.
Joseph: The case is for motion. It appears only the 1st accused is now represented by counsel.
Ogunniran: I appear for 2nd and 3rd accused.
Ogunniran: We have an application brought pursuant to section 341(2) C.P.C praying for an order admitting the 1st applicant to bail pending the determination of the case. Application is supported by a 6 paragraph affidavit and we rely on all of them.
There is no counter affidavit which has not controverted our averments. For application to succeed, we must show there is no basis for holding applicant pending trial.
It is not the charge that matters. See Boniface v. C.O.P (2001) FWLR (Pt. 66) 755 at 763 - 764. We submit that what is put before the Court is not an offence. We have attached the F.I.R as Exhibit "A".
At this stage I apply to withdraw the motion.
Joseph: No objection,
Court: Application is granted. Motion is accordingly struck out. Case adjourned to 26/6/03 for hearing
1st, 2nd and 3rd accused present, speak Hausa.
4th accused at large,
M.D. Joseph Esq: (State Counsel) for the State
Joseph: The accused have a counsel already. We ask for a date for hearing.
Accused: No objection
Court: case adjourned to 18/5/04 for hearing.
Defence counsel shall be served.
1st, 2nd and 3rd accused in Court, speak Hausa.
4th Accused at large.
Dalhatu Zailani: affirmed to interpret from English to Hausa and vis-a-vis s. 242 CPC.
M.D. Joseph Esq: (State Counsel) for the prosecution
O. E. Ogunniran Esq with Suleiman Ohizoge Esq for the accused persons.
Joseph: The case was adjourned to today for hearing. However, we have a slight problem in assembling our witnesses, I have intimated my learned friend and we have agreed to take short adjournment to enable us assemble our witnesses.
Ogunniran: That is true and we have agreed on 17/6/04 and he will bring his witnesses.
Court: Case adjourned to 17/6/04 for positive hearing. The prosecution shall bring all their witnesses on that date.
M.D. Joseph Esq: state counsel for the State
O.A. Ogunniran Esq: for the Accused.
Joseph: The case is for hearing. However we are yet to summon our witnesses. We are asking for the last adjournment at new instance to call our witnesses.
Ogunniran: We have no objection.
Court: Case adjourned for the last time at the instance of the prosecution to 27/7/04 for hearing.
1st, 2nd and 3rd Accused present, speak Hansa.
4h Accused at large.
M. D. Joseph Esq: State counsel for the State
O. F. Ogunniran Esq with Mr, Osinaye for the accused.
Mr. Zailani: affirmed to interpret from English to Hausa and vice versa. S.242 CPC
Joseph: The case is for hearing and we are ready to go on
Ogunniran: We are also ready.
Pw1: Moslem, affirm, speak English, I am Sgt. Aminu Hamza, attach to State CID, Ant. Robbery section, Kaduna. I am No. 127615. As at March 2001 I was a Corporal, I know the three accused on 28/2/2001 at about 12.30. I was on duty at the Ant. Robbery section State CID Kaduna when a case of armed robbery was transferred"..
Joseph: We seek to tender the two statement dated 28/3/2001 and 28/5/2001 in evidence.
Ogunniran: We are not opposed to the admissibility of the two documents,
Court: Very well, statement and additional statement of 2nd accused dated 28/3/2001 and 28/5/2001 are admitted in evidence as Exhibits 1 and 2 respectively.
(Pw1 reads Exhibits 1 and 2).
NOTE: 3rd accused tells his counsel that he made the statement.
Joseph: We seek to tender them in evidence.
Ogunniran: I do not oppose their admissibility into evidence,
Court: Statement of Id accused in Hausa language dated 28/5/2001 and its English translation are admitted in evidence as Exhibit 3 and 3A respectively.
(Pw1 reads Exhibits 3 and 3A).
Pw1: On 28/5/2001, our team went to Tafa and visited the scene of crime. One comprehensive medical centre was also visited where one of the victims was admitted-
Cross Examination by Ogunniran Esq:
Joseph: We apply for another date to call new other witnesses.
Ogunniran: We have no objection.
Court: Case adjourned to 23/9/04 for continuation of Hearing
The trial Court sat on the following subsequent dates.
Pw2 testified and tendered Exhibit 4.
Pw2 contained with his testimony
Continuation of hearing request as date for no case submission
No case submission made on behalf of accused.
Ruling on no case submission delivered.
3rd accused/appellant seek adjournment for a date to enter his defence
Dw1/appellant testified and was cross-examined
8. 28 10-05
Judgment delivered in the case against the 3rd accused/appellant".
I have carefully scrutinized the record of appeal which consists of 31 pages. Page 1 is the proceedings of the first day the accused person appeared for the first time in Court on 19/7/03.
Pages 4 - 7 contains the proceedings of 27/7/04 when the prosecution opened its case and the Evidence of Pw1 Sgt. Aminu Hamza of the State CID, Anti Robbery section was taken.
The proceedings of 27/7/04 did not disclosed that the appellant was properly arraigned as required by the mandatory provisions of section 187(1) & (2) of the criminal procedure code. Though the appellant and other accused persons were in Court there is nothing on the face of the record of appeal which indicate that the charge against the appellant was read out and explained to him in Court,
The proceedings of 27-7-04 on pages 4-7 did not disclose that the appellant was asked whether he was guilty or not guilty to any offence he was charged with.
In effect no plea to any offence was recorded against the appellant as 3rd accused who appeared before the Court on 27-7-04 and subsequent days until judgment was delivered against him on 28-10-05 sentencing him to death.
The conditions for a valid arraignment which I have adumbrated earlier in this judgment which the Supreme Court said in a plethora of judicial decisions to be mandatory were not complied with by the trial Court.
It has been held by the Supreme Court in Edibo v. State (supra) that any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity.
The absence of a valid arraignment and plea of the appellant taken against the offence he was charged upon which he was convicted and sentenced to death, makes decision of the trial Court a nullity.
The respondent by its application to this Court dated 8/6/2010 and filed 11/6/2010 granted on 16/2/2011 in which the Registrar of the Court below was ordered to produce the hand written version of the record of proceedings of the Court below, which is yet to be produce did not indicate the purpose for which the hand written version of the record of proceeding was required and same had not been produced as at the time the parties concluded arguments in this appeal.
The position of the law is that where all diligent efforts, to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial. See:
Haastrop (W.A) Ltd v. Welding Engineering Co. (Nig.) Ltd (1996) 9 NWLR (Pt. 470) page 92.
First Bank of Nigeria Plc v. May Medical and Diagnostic (2001) 27 WRN 162.
Uwecha v, Obi (1973) 2 SC 1 at 6In the instant case there is no application by any of the parties to this appeal challenging the accuracy of the record. The presumption is that the record of appeal received by this Court on 3/2/2010 is the correct record of what transpired at the trial of the appellant before the lower Court.
The fact that the appellant was in Court together with his counsel and an interpreter provided does not prove that the appellant was properly arraigned and his plea to the charge against him taken and properly recorded.
The submission of counsel cannot be substitute for evidence. It is now trite law that no matter how brilliant and persuasive counsel's submission may be, it can never metamorphose into evidence.
See: Nig. Arab Bank Ltd. v. Femi Kane Ltd. (1995) 4 NWLR (Pt. 387) page 100 at 106
Chukwujekwu v, Olalere (1992) 2 NWLR (Pt. 221) page 86 at 93,Learned counsel to the respondent cannot vary the content of the record of proceedings of the lower Court by his submission. See section 132(1) of the Evidence Act.
The failure to comply with the provisions of section 187(1) & (2) of the criminal procedure code is an issue of jurisdiction which is a thrash hold issue which can be raised at any time even at the Supreme Court for the first time.
Since the trial Court lacks jurisdiction to adjudicate over the matter, its decision delivered on 28/10/2005 is a nullity and it is hereby set aside.This first issue is hereby resolved in favour of the appellant.
Having declared the whole proceeding leading to the conviction and sentence of the appellant a nullity, it will amount to an academic exercise entertaining the second issue for determination.
Since the whole proceeding is a nullity, I will now consider whether from the circumstances of this case it is proper to order for a fresh trial.
It is trite that where an error of a lower Court cannot be corrected by an appellate Court based on the evidence on the record without injustice to either of the parties, an order of the retrial is most appropriate. See:
Fatoyinbo v. Williams (1956) SCNLR 274
Igwe v. Kalu (2002) 4 NWLR (Pt.761) page 678
Sanusi v. Ameyogilu (1992) 4 NWLR (Pt. 237) page 527;
Okoye v. Kpajie (1973) 6 SC 176
The conditions under which a Court can order for a fresh trial in a criminal matter has been enunciated in the case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 as follows:
"(a). that there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice,
(b). that, leaving aside the error or irregularity, the evidence taken as a whole discloses as substantial case against the appellant;
(c). that there are no such special circumstances as would rendered it oppressive to put the appellant on trial a second time;
(d), that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and
(e). that to refuse an order for a retrial would occasioned a greater miscarriage of justice than to grant it":
In Moshood v. State (2004) 14 NWLR (Pt. 893) page 422 at 428, the Court held that:
"A retrial order is made when there had been an error in law of an irregularity in the procedure that does not make the trial a nullity nor create a miscarriage of justice. The Court must be satisfied that:
(a) The evidence taken may otherwise disclose the commission of the offence substantially,
(b). there is no special circumstance that wilt render it oppressive to put the accused back on trial and that to refuse a retrial would result in a greater injustice".The appellant has been in detention since 2001. Other co-accused with whom he was standing trial were discharged after a no case submission. The appellant was convicted and sentenced upon his retracted confessional statement for the same offence the other co-accused person were discharged. The said retracted confessional statement upon which the trial Court found the appellant guilty and convicted him was never tested for its authenticity.
See: Ogudo v. State (2011) 8 NWLR (Pt. 1278) page 1 at 26:
Kanu & anor v. King (1952) 14 WACA 30
Mbenu v. State (1988) 3 NWLR (Pt. 84) page 615
Stephen v. State (1986) 5 NWLR (Pt. 46) page 978".
It is trite that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of the Defence to the benefit of one of them should also result in its acceptance for the benefit of the others.
See: Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) page 367;
Okobi v. State (1989) 7 SC page 47;
Ulwimmemuo v. State (1989) 4 NWLR (Pt. 114) page 131;
Kalu v. State (1988) 4 NWLR (Pt. 90) page 503 and
Akpan v. State (2002) 12 NWLR (Pt. 780) page 189.
It has been further held in the case of Ebri v. State (2004) 11 NWLR (Pt. 885) 589 at 384 that a Court of law cannot convict a co-accused and discharge another co-accused on same or similar evidence,
There is also the fact of the trial judge stepped into the arena of dispute when he flapped his ears into a privilege conversation between the appellant and his counsel, He recorded in his record book, that he heard the appellant admitting the confessional statement to his counsel. The learned trial judge on his own without an invitation from any counsel, made used of the information in admitting the retracted statement of the appellant, upon which he convicted and sentenced the appellant to death for the offence of armed robbery. The manner the learned trial judge conducted the proceedings in the case is most improper. The question now is whether this is a proper case where a retrial should be ordered in view of the fact that the whole trial is a nullity as a result of there being no indication from the face of the record of the lower Court that either the charge upon which the appellant was convicted was read out and explained to him in Court as required by section 187(1) & (2) of the Criminal Procedure Code or was his plea to any charge at all recorded by the trial Court.
There is also the fact that counsel to the respondent alluded to the fact that the record of the lower Court as compiled and transmitted to this Court is incomplete and diligent efforts to procure the handwritten version of the record has failed.
There is merit in this appeal and it is hereby allowed.
I have carefully examined the circumstances of this case in light of the principle set out in the cases of Abodundu v. The Queen (supra);
Umaru v. The State (2009) 8 NWLR (Pt. 1142) page 134 at 143 -149;
Okeke v. State (200t) 2 NWLR (Pt. 697) page 397;
Barmo v. State (2000) 1 NWLR (Pt. 641) page 424;
Adeoye v. State (1999) 6 NWLR (Pt. 605) page 74;
Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385;
Okoduwa v. State (1988) 2 NWLR (Pt. 76) page 333;
Okegbu v. State (1979) 11 SC 1;
Okosun v. State (1979) 3 SC 36;
Owoh v. Queen (1962) 2 SCNLR 409;
Ogunremi v. Queen (1961) 2 SCNLR 198.
I have come to the conclusion that the special circumstance of this case will render it oppressive to put the appellant on trial a second time, The appellant in the circumstances ought to be discharged and he is accordingly discharged and acquitted.
It is hereby ordered that he should be release from the detention forthwith,
AMIRU SANUSI, (OFR) J.C.A.:
I had a preview of the judgment just tendered by my learned brother Abdu Aboki, JCA. My noble lord has adequately treated the salient points raised and canvassed by the learned counsel to the parties. I therefore have nothing more to add. I agree with the reasoning and the conclusion he arrived at, that the appeal is meritorious and it succeeds. I accordingly allow the appeal. I hereby discharge and acquit the appellant. I endorse the consequential order made in the lead judgment.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: The Appellant, Zakari Ya'u was charged before the Kaduna State High Court as the 3rd accused person together with Messrs Mohammed Ibrahim as the 1st accused, Yakubu Umar as the 2nd accused person and one Husseini who was said to be at large. They were arraigned on two count charge for the offences of conspiracy punishable under section 97 of the Penal Code and robbery while armed with sticks and other weapons and stolen the sum of N54,600.00 and other valuables and in the process, also beat one Nasim Alfa who later died in the hospital, punishable under section 1 sub-section (2)(a) and (b) of the Robbery and Firearms Act, Cap, 398, Laws of the Federation of Nigeria, 1990. I entirely agree with the decision of my learned brother Aboki, J.C.A, regarding the preliminary objection raised by the Respondent, and, his reasoning and conclusion in respect of issue No. 1 postulated by the Appellant. It ought to be recognized that the Appellant was charged with or stood trial for an offence that was not only heinous, but, carries on its own, death sentence. Therefore, the issue is not whether the punishment for the offence carries a term of imprisonment or years, or that the Appellant had served several years out of the maximum term or the years imposed on him, had section 187(1) of the Criminal Procedure Code been complied with.
Saying that a procedure is null means that it had never existed before. However, there seem to be divergent views on the proper order to make when a criminal trial is held to be a nullity. In Tobby vs. State (2000) 10 NWLR 720 page 23, the Supreme Court, per Ogwuegbu, J.S.C, after holding that there was non-compliance with the provisions of Section 215 of the Criminal Procedure Law of 33(6)(a) of the 1979 Constitution which vitiated the trial of the Appellant and rendered the whole trial null and void and also the proceedings in the Court below then, stated that having regard to the evidence of the sole witness, order of retrial will be an exercise in futility. The Appellant was acquitted and discharged.
Then, in Rufai vs. State (2001) 13 NWLR Part 731 page 718, per Wali, JSC, the Supreme Court recognized that the plea of the Appellant purportedly taken was in contravention of Section 215 of the Criminal Proceeding Law, Oyo State and Section 33(6) (a) of the 1979 Constitution and the trial was null and void. His Lordship further expressed:
"Since the purported trial of the Appellant has been declared a nullity, then what is the proper order to make in the circumstance, taking into consideration the nature of the evidence involved, the gravity of the offence committed and the need to do justice to both sides. Guided by the above facts and the principle laid down by this Court in Abodundu & 4 Ors vs. Queen (1959) 4 FSC 70; (1959) SCNLR 162 and elaborated upon in Kajubo vs. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of section 215 of Criminal Procedure Law Oyo State and section 33(6) (a) of the 1979 Constitution, which is a pure mistake of law. I hereby make that order."
The trend now seems to support the situation in Tobby vs. The State (supra) as is shown in Umaru vs. The State (2009) 8 NWLR Part 1142 P.134, per Musdapher, JSC (as he then was). It was held that the right of Appellant has to be protected from prejudice, in other words, an order for retrial cannot be made in a situation where the Appellant is exposed to prejudice. It was further stated that the retrial ordered will not only spell more hardship on the appellant, but will present difficulties for the prosecution. Both ways, it will be unjust.
I think greater caution has to be applied so as to avoid situations of letting off serial killers, psychopaths, and unrepentant and dangerous offenders who had, not only inflicted deep pains on their victims and members of their respective families, but may turn round to endanger humanity. In any case, if a person sets out with the intention to murder his fellow being or rob him of his property with violence, he should, equally, be prepared to face the wrath of the law no matter how long it takes. Nevertheless, since there are no hard and fast rules now on the proper order to make after holding a criminal trial null and void, I agree that the Appellant be discharged.
Ibrahim Idris For the Appelants
Ademola Adeniji For the Respondents