Shehu Mohammed V. Kano State (2019)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division delivered on 22nd day of May, 2015 wherein the lower Court set aside the conviction and sentence to death of the appellant by the learned trial Judge, declared the entire trial a nullity for failure to take the plea of the appellant before trial and ordered a retrial of the appellant by another Judge of the Kano State High Court.
The appellant was jointly charged and tried before Justice Badamosi of the Kano State High Court for the offences of conspiracy to commit the offence of armed robbery punishable under Section 6(b) of the Robbery and Fire Arms (Special Provisions) Act, Cap 11 of 2004 and Armed Robbery punishable under Section (1) (2) (a) of Robbery and Fire Arms (Special Provisions) Act Cap, Laws of the Federation of Nigeria 2004.
A brief facts leading to this appeal shows that on 12th November, 2012, at about 3:00 am, Professor Ibrahim Ayagi (PW1) was attacked in his house by some armed robbers who tied his hands, beat him to a state of unconsciousness and robbed him and his wife of the
sum of N540,000, wrist watches, Gold jewelries valued at N900,000 among other items. Professor Ayagi was hospitalized at the Aminu Kano Teaching hospital and later transferred to Abuja Hospital and subsequently flown outside the country for treatment. A few weeks later, the appellant and one Muhammed Nasiru were arrested by the police in connection with the robbery, tried, convicted and sentenced to death.
At the trial, which commenced on 15th March, 2009, the prosecution called six witnesses and tendered the confessional statement of the Appellant which was admitted as Exhibit A. Appellant testified in his defence and called no witness. In a reserved judgment delivered on 18th June, 2012, the learned trial Judge convicted and sentenced the appellant to death by hanging.
Dissatisfied with the said judgment, the appellant appealed to the Court of Appeal, Kaduna which allowed the appeal on the ground that the appellant was not properly arraigned and ordered a retrial before another Judge of the Kano State High Court. Again, not satisfied with the order of retrial, the appellant has further appealed to this Court. Notice of appeal was filed on 22nd
This appeal was argued on 14th February, 2019. Counsel for both parties adopted their respective briefs. Appellant’s brief was filed on 6th June, 2016 and signed by Yakubu Maikasuwa Esq. It was however deemed properly filed on 31st January, 2018. Also, the brief of the respondent, settled by Mukhtar Sani Daneji Esq., Solicitor General of Kano State, was filed on 28th July, 2016 but deemed filed on 31st January, 2018. Learned counsel for the appellant has distilled one issue for the determination of this appeal. It states: –
“Having regard to the facts and circumstances of this case, was the Court of Appeal right in ordering a retrial after nullifying the trial and conviction of the Appellant”
Learned counsel for the respondent adopts the sole issue as couched by the appellant.
Appellant’s main contention in this issue is that the Court below did not take into consideration the principles laid down for such an exercise as adumbrated in Abodundu vs Queen (1959) SCNR 162 and although the principles were considered in the contributing judgment of Abiru, JCA, it was not done in the lead judgment. Secondly, that the possibility of
having all the witnesses to testify or remember the facts is remote. He concluded that a retrial would work injustice on the appellant and urged the Court to follow some decisions of this Court as follows:- Mohammed v The State (2013) 5 NWLR (pt 1347), Adeoye v The State (1999) 6 NWLR (pt 605) 74 and Umaru v The State (2009) 8 NWLR (pt 1142) 134 at 145. He urged the Court to resolve this issue in favour of the appellant and grant an order acquitting and discharging the appellant.
In response, the learned counsel for the respondent referred to the case of Adeyemi v The State (2013) 4 SCNJ and submitted that all the conditions laid down therein for an order of retrial to be made have been met in the instant case.
Learned counsel submitted that since the appellant made a confessional statement to the police, he can be convicted on his confessional statement alone even if there are no other witnesses. He contended that justice for the appellant must be weighed against that of the general public and the victims of the robbery who must be protected from the ruthless acts of the appellant. He opined that the cases cited in support of the appellant’s
arguments are distinguishable from the facts of this case. He urged this Court to resolve this issue in favour of the Respondent.
In concluding its judgment, the Court below made the following decision which is the basis of this appeal:
“Going by the principles enunciated by the Supreme Court in Yahaya v State (2002) 2 SCNJ at 10, and several other cases, and considering the facts of this case, including the evidence adduced before the lower Court, an order of a re-trial is the appropriate order to make in this circumstances… In consequence, this appeal succeeds and is allowed. The decision of the Court delivered on 18th June, 2012 is hereby set aside being a nullity. The case is remitted to the Hon. Chief Judge of Kano State for retrial.”
The issue before this Court for determination in this appeal is whether the Court below was right in ordering a re-trial after setting aside the first trial by the learned trial Judge. The question whether an order of retrial will be made by an appellate Court depends on the circumstances as the justice of a particular case may dictate. The principles which would guide an appellate Court whether to
order a retrial or not have been laid down by this Court in the locus classicus case of Yesufu Abodundu & Ors v The Queen (1959) 1 N.S.C.C. 56 at 60 where this Court stated as follows: –
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied: –
(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to invoke the provision to Section 11(1) of the Ordinance;
(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant;
(c) that there are no such special circumstances as would render 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 occasion a greater miscarriage of justice than to
The above principles have been further reaffirmed in Adeoye v The State, (1999) 6 NWLR (pt 605) 74 at 88, Mohammed v The State (2013) 5 NWLR (pt 1347) 315, Okpara v FRN (1977) 4 SC (Reprint) page 31, (1977) LPELR – 2517 (SC), Yahaya v The State (2002) 3 NWLR (pt 754) 289, Inspector John Onwe v The State (2017) LPELR -42589 (SC).
Now, on the reason why the trial of the appellant at the trial Court was quashed, it appears that both parties are ad idem there being no appeal against the setting aside of the trial. The problem lies on the consequential order that there shall be a retrial of this matter. There is no doubt about the decision of the Court below that there was an infraction of Section 187 (1) of the Criminal Procedure Code and Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). As was held by the Court below, there is nothing in the record of the learned trial Judge that the charge was ever read to the appellant and there is nothing to show that he took his plea as demanded by Section 187 of the Criminal Procedure Code applicable to this case. The law is trite that once the provisions of Section
187 of the Criminal Procedure Code or Section 215 of the Criminal Procedure Law (applicable in the southern States of Nigeria) and those of Section 36 of the Constitution (supra) are not followed in a criminal trial, the entire trial is rendered null and void ab initio. All the efforts put in by the trial Court including the judgment generated from it amount to an exercise in futility and of no legal consequence. See Salisu Yahaya v The State (supra).
At this stage, it is not the duty of this Court to make conclusive comments on the evidence adduced at the trial Court during the first trial as this may be prejudicial to the next trial if ordered. The learned trial Judge should be allowed to make up his mind independently and not to be influenced by the opinion of this Court. For this reason, I shall refrain from making comments on the evidence led at the trial Court. All I need to say now is that the offence which the appellant is charged with is of great magnitude and even if witness may not be found, and there is no such evidence before this Court to that effect, there is a confessional statement which if found to be clear, cogent and unequivocal and
admitted in evidence, may be relied upon by the Court to convict the appellant. This is so because this Court has held in a plethora of decisions that a trial Judge can rely on the confessional statement of an accused person alone to convict him. See Salu v The State (2014) 12 NWLR (pt 1420) 65, Blessing v FRN (2015) LPELR – 24689 (SC), Aremu v The State (1991) 7 NWLR (pt 201) 1 at 15, Nwachukwu v The State (2007) 17 NWLR (pt 1062) 31.
As was observed by the learned counsel for the Respondent, the right of the appellant’s freedom has to be weighed against that of thal publie generc who are entitled to be protected from the ruthless acts of the appellant. Justice is not only for the appellant but also for the victims of the robbery particularly PW1 who nearly died having been beaten to the stage of unconsciousness and had to be flown abroad for treatment.
The principles laid down in Yusufu Abodundu v Queen (supra) which I had set out above appear to have been met in this case. The facts which informed the decision in Yahaya v State (supra) are present in this case. Both the severity of the offence and the quality of evidence led so far are identical
between Yahaya’s case and the instant case. The cases of Mohammed v State (supra) and Adeoye v The State (supra) relied upon by the appellant are distinguishable with the instant case.
In Mohammed v The State (supra), this Court was of the view that the case has not been established owing to the extreme provocation which is a defence but there is nothing of sort in this appeal. Also in Adeoye v The State (supra), this Court held that there was evidence that all the tenants in the premises had relocated to unknown places and that they may not be found to testify. There is no such evidence in the instant case. Moreso, as I said earlier, there is a confessional statement in the instant case which if properly admitted and believed, the appellant can be convicted based on it alone.
In circumstance therefore, I agree with the Court below, that having regard to the quality of evidence led at the trial Court, the gravity of the offence and the confessional statement of the appellant, and in order to serve justice on all parties, the only reasonable and responsible order to make is that of a retrial. Thus, this issue is resolved against the appellant.<br< p=””
Having resolved the lone issue against the appellant, I hold that there is no merit in this appeal and is accordingly dismissed. I affirm the judgment of the Court below delivered on 22nd May, 2015. I also affirm the consequential order for retrial made therein. In view of the age of the case, I hereby order accelerated hearing which must be commenced within three months with effect from the date of this order.