CORAM

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ITA GEORGE MBABA JCA

PATRICIA AJUMA MAHMOUD JCA

PETER OYINKENIMIEMI AFFEN JCA

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PARTIES

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BUBA ADAMU

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, EVIDENCE LAW, HUMAN RIGHTS

 

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SUMMARY OF FACTS

The Appellant was charged with culpable homicide punishable with death under Section 220 of the Penal Code for allegedly inflicting fatal injury on one Kyari Madu with a stick. After the original trial judge’s transfer, the case was reassigned. The Appellant was convicted and sentenced to death. He appealed on grounds including improper arraignment and failure to prove essential elements of the offense beyond reasonable doubt.

 

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HELD

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1. The appeal was allowed

2. The trial court’s judgment was struck out for being a nullity

3. No retrial was ordered

4. The Appellant was discharged forthwith

 

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ISSUES

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1. Whether the trial, conviction and sentence was a nullity due to non-compliance with Section 36(6)(a) of the Constitution?

2. Whether the prosecution proved essential ingredients of culpable homicide punishable with death beyond reasonable doubt?

 

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RATIONES DECIDENDI

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REQUIREMENTS FOR VALID ARRAIGNMENT – MANDATORY ELEMENTS:

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“A valid arraignment in law would consist of the following: That the accused who is to be tried should be physically present before the trial court unfettered; That the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the Judge; That the accused shall be called upon to plead to the charge and That the plea of the accused shall be recorded by the Judge.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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BREACH OF CONSTITUTIONAL PROVISIONS – EFFECT ON PROCEEDINGS:

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“….in effect, it is now firmly established that a breach of a mandatory Constitutional Provision is more than a mere technicality. That it touches on the legality of the whole proceedings, including Judgments, and I will add the taking of a plea of an accused person or persons and any incidental order or orders made thereafter.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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PROOF OF CAUSATION – REQUIREMENT IN HOMICIDE:

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“If there is the possibility that the deceased died from other causes other than the act of the accused, the prosecution has not established the case against the accused person.” – Per Patricia Ajuma Mahmoud, J.C.A.

 

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DOUBT IN CRIMINAL CASES – RESOLUTION IN FAVOR OF ACCUSED:

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“All these posers create the possibility that there is more than one possible cause of death. This means that the doubt created has to be resolved in favour of the Appellant as the available evidence does not pin him down to the death of the deceased.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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ORDER OF RETRIAL – GUIDING PRINCIPLES:

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“The SC has laid down some principles that guide the court whether or not to order a retrial in a matter. The decision in ABODUNDE V THE QUEEN (1959) 4 FSC, 70, 73-74 is well acknowledged as the locus classiqus on the principles of ordering a retrial.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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RETRIAL ORDER – CONSIDERATION OF CIRCUMSTANCES:

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“Effectively therefore, the Appellant has spent at least twelve years of incarceration awaiting the final verdict. This would have been adequate punishment for the offence of culpable homicide not punishable with death. – Per Patricia Ajuma Mahmoud, J.C.A.

 

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MEDICAL EVIDENCE – IMPORTANCE IN HOMICIDE:

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“There is no medical report or post mortem report. It is this report that would have established the cause of death and shown whether that could be linked to the action of the Appellant.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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ROLE OF DEFENSE COUNSEL – DUTY TO CLIENT:

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“The fact that the Appellant was represented by the officers of the Legal Aid Council is in my view no justification for their lackadaisical attitude to the defence of their client who was being tried for a murder case with the death sentence as a possible punishment.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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PRESUMPTION OF REGULARITY – LIMITS:

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“The law is settled that when a trial is declared a nullity, it means it never took place or existed. In a criminal trial therefore an order of retrial will be a natural consequence of the trial being declared a nullity.- Per Patricia Ajuma Mahmoud, J.C.A.

 

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EYEWITNESS TESTIMONY – EVALUATION:

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“The alleged eye witness evidence stated that the appellant hit the deceased only once and not repeatedly. That it was a stick although he never identified Exhibit BA3 as that stick not an iron. PW4 never testified that the deceased sustained injuries from which he was bleeding.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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NULLITY OF PROCEEDINGS – EFFECT:

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“This is because in addition to being a breach of the mandatory requirements of a valid arraignment, an invalid or lack of arraignment of an accused person is also a breach of the mandatory Constitutional Provisions in Section 36 (b) (a) of the 1999 Constitution.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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PROSECUTION’S BURDEN – PROOF OF ESSENTIAL ELEMENTS:

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“In a murder charge, the prosecution is required to prove beyond reasonable doubt not only that the act of the accused person could have caused the death of the deceased by that it actually did.- Per Patricia Ajuma Mahmoud, J.C.A.

 

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CIRCUMSTANCES AFFECTING RETRIAL – TIME FACTOR:

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“The proceedings of the High Court presided over by Hon. Justice Sani must have commenced in 2013 going by the suit No. TRSJ/13C/2013. The number 13 presupposes that the matter was filed early in the year, probably January.”- Per Patricia Ajuma Mahmoud, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999, Section 36(6)(a)

2. Penal Code, Sections 220, 221(a)

3. Evidence Act 2011, Section 168(1)

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