Mohammed Adamu V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Yobe State, in Damaturu Judicial Division, sitting at Potiskum, (hereinafter referred to as the trial Court), delivered on 20th November, 2006. The Appellant was convicted of the offence of armed robbery and sentenced to death by hanging.

The facts of this matter are that, the Appellant was arraigned before the trial Court for robbing while armed with a machete, one Adamu Abdu, of the sum of four hundred naira, clothing and food items, on 4th December, 2002, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act. The Appellant pleaded not guilty to the charge. The prosecution called two (2) witnesses to prove the charge preferred against the Appellant, who testified in his own defence, but called no witness. At the conclusion of the trial, the Appellant having being found guilty of robbing Adamu Abdul while armed with a matchete, was sentenced to death by hanging.

Dissatisfied with the conviction and sentence, the Appellant appealed to this Court, “vide” a notice of appeal which was deemed properly filed on 22nd March, 2012, containing four (4) grounds of appeal in addition to the omnibus ground and issues were distilled for determination. Both sides to this matter filed and exchanged their respective briefs of argument. The Appellant filed his brief of argument on 22nd March, 2012 and in it, two issues were formulated for determination, to wit:

1. Whether or not the Appellant, in view of the entire circumstances of this case, had a fair hearing and fair trial?
2. Whether or not the prosecution proved its case against the Appellant, beyond reasonable doubt?

The Respondent also filed a brief of argument on 13th April, 2012 and in it, formulated five (5) issues for the determination of the appeal, thus:

1. Whether or not having regard to the totality of the evidence adduced at the trial Court, the prosecution proved its case against the Appellant beyond reasonable doubt?
2. Whether or not the differences in suit numbers as contained in the record of proceedings of the trial Court have in any way denied the Appellant his constitutional right to fair hearing and occasioned a miscarriage of justice that warrants the setting aside of the judgment of the trial Court?
3. Whether or not there are contradictions in the evidence of the prosecution?
4. Whether or not the failure to record the statement of the Appellant (exhibit ‘A) in the language the Appellant made it, renders the statement inadmissible in evidence?
5. Whether or not having in mind the manner in which the defence of the Appellant was conducted by his counsel at the trial Court, denied him the right to fair hearing and thereby occasioned miscarriage of justice?

The two issues formulated in the Appellant’s brief of argument are concise, apt and adequate for the resolution of this appeal, therefore I am also adopting them.

ISSUE ONE

Whether or not the Appellant, in view of the entire circumstances of this case, had a fair hearing and fair trial?

One of the contentions of the learned counsel for the Appellant, is that, the Appellant was not given a fair hearing and fair trial, contrary to the provisions of Section 36 (1) & (5) of the 1999 Constitution. In counsel’s opinion, the Appellant was tried, convicted and sentenced under more than one suit number. The Appellant stated that for his defence, he briefed a senior counsel, Mr. U. M. Abdulrahman who in turn assigned his case to a very junior and inexperienced counsel, who were Youth Corpers in his chambers. The said junior counsel because of their limited professional experience were said not to be conversant with procedure in a criminal trial. Hence, they did not apply for a trial-within-trial, even when the complaint of Appellant was that, he was tortured and forced into signing the alleged confessional statement, exhibit A. The said confessional statement was written in English Language rather than, Fulfulde, that is, Fulani Language, the language of the Appellant, who is not literate. The Appellant’s learned counsel therefore submitted that, the said errors were fatal to the case of the prosecution. He urged this Court to expunge the alleged confessional statement, exhibit A. He rested his position on the cases of:

(1) Udofia v. The State (1988) 3 NWLR (Pt.84) p. 533; (2) Ahmed v. The State (1999) 7 NWLR (Pt.612) p.641, at pgs. 684 – 685, paras, G – C and (3) Sabi v. The State (2011) 14 NWLR (Pt.1268) p.421, at pgs. 437 – 438, paras, B – B and p. 439, paras. E – G.

Responding to the position taken for the Appellant, the Respondent’s learned counsel, argued that, in regard to the suit number under which the Appellant was charged, tried, convicted and sentenced, it is patent that the errors were merely typographical which did not jeopardise the trial of the Appellant. What is more, the learned counsel for the Appellant did not point out the alleged errors at the trial Court, rather, the Appellant was made to submit to the so-called irregularity. The Appellant was not misled especially regarding the charge preferred against him and he did not suffer any injustice as a result of this. On this the learned counsel relied on the case of: Buraimoh Ajayi v. Zaria Native Authority (1963) 1 All NLR p. 169. Further on this point, the learned counsel for the Respondent argued that the onus that the lapses resulted in a miscarriage of justice to the Appellant is on him and he did not discharge the onus. On this, reference was made to the case of: Durwode v. The State (2001) 2 ACCR p.503. It was further contended that, the charge was read and explained to the Appellant before his plea was taken. He was represented by a legal practitioner of his choice, throughout the proceedings at the trial Court. That in all of these, the Appellant’s constitutional right to fair hearing trial was not in any way violated.

The “gravamen” of the Appellant’s complaint under this issue, using my own words is that, there was non-compliance with the relevant procedural law and the Constitution, at his trial. I have already set out earlier on in this judgment, the factual details from the point of view of the Appellant, the reaction of the Respondent and my verification of the said facts. I shall now juxtapose the said facts with the applicable procedural law and the relevant provisions of the Constitution, that is, Section 215 of the Criminal Procedure Act, which is “in pari materia” with Sections 187 and 188 of the Criminal Procedure Law of Yobe State and Section 36 of the 1999 Constitution.

The said Sections 187(1) and (2) and 188 of the Criminal Procedure Code of Yobe State, 1994, provide thus:

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.