Legalpedia Citation: (2022-09) Legalpedia 34891 (CA)

In the Court of Appeal

YOLA JUDICIAL DIVISION

Tue Sep 6, 2022

Suit Number: CA/YL/180C/21

CORAM

JAMILU YAMMAMA TUKUR JCA

MOHAMMED L. ABUBAKAR JCA

PARTIES

HASSAN

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

LAW OF EVIDENCE, CRIMINAL PROCEDURAL LAW, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE.

 

SUMMARY OF FACTS

This appeal is against the judgment of the High Court of Adamawa State (trial court), the trial court convicted the Appellant for the offences charged under counts 1,2,3, and 4of the information filed at the trial court. Counts 1-3 bordered on conspiracy to commit armed robbery while count 4 bothered on illegal possession of firearms. The Appellant testified in evidence, tendered no evidence, denied committing any of the offences charged and testified that he was forced and tortured to say that he committed the alleged offences.  On the alleged confession of the Appellant in Exhibits C1 – C4, the trial court held that the prosecution proved its case beyond reasonable doubt against the Appellant in respect of the offences charged.  The Appellant was convicted for the offences charged under counts 1 – 4 of the information.  It was made out that the Appellant was not charged under count 4 of the information but, was convicted on count four (4), pages 7 and 291 of the printed records of Appeal. The Appellant dissatisfied with the decision of the trial court, has appealed to this court.

HELD

Appeal allowed.

ISSUES

1. “Considering that the Trial Court convicted and sentenced the Appellant for an offence with which the Appellant was not charged, is the judgment not a nullity? (Distilled from Grounds 1 and 2 of the Notice of Appeal.)?
2. Was the Trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy to commit armed robbery and convicted and sentenced the Appellant to death?” (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 14 and 15 of the Notice of Appeal.)?

RATIONES DECIDENDI

CONVICTION – AN ACCUSED CANNOT BE CONVICTED FOR AN OFFENCE NOT CHARGED

The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. Per – CHIDI NWAOMA UWA, JCA.

CONVICTION – THE POSITION OF THE LAW WHERE AN ACCUSED IS CHARGED WITH AN OFFENCE BUT EVIDENCE SHOWS HE COMMITTED A DIFFERENT OFFENCE

The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See, OKABICHI & ORS. VS. STATE (1975) LPELR – 2406 (SC) Pp. 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH VS. FRN (2008) 13 NWLR (Pt.1103) 1 and Section 223 of the Administration of Criminal Justice Act, 2015 (ACJA 2015) which provides thus:

“Where a Defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed although he was not charged with it”. Per – CHIDI NWAOMA UWA, JCA.

CONVICTION – CONDITION PRECEDENT A COURT CONVICTING AN ACCUSED UNDER S.223 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA 2015)

Before the trial court can convict under the above provision or condition, the evidence adduced must have established the offence beyond reasonable doubt. Per – CHIDI NWAOMA UWA, JCA.

FAIR HEARING – THE REQUIREMENT OF THE RIGHT TO FAIR HEARING

The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See, ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1 Per – CHIDI NWAOMA UWA, JCA..

RIGHT TO BE INFORMED – AN ACCUSED HAS THE RIGHT TO INFORMED OF HIS OFFENCE IN THE LANGUAGE HE UNDERSTANDS

Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. Per – CHIDI NWAOMA UWA, JCA

CONVICTION – WHETHER OR NOT AN ACCUSED CAN BE CONVICTED FOR AN OFFENCE NOT CHARGED

In NGGILARI VS. STATE & ORS. (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:

“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged”.

See, FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C – E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D. Per – CHIDI NWAOMA UWA, JCA.

FAIRHEARING – DENIAL OF FAIRHEARING AND THE RESULTANT EFFECT THEREOF

The Appellant was denied fair hearing, under the present circumstances it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended). The resultant effect is that the trial court’s conviction and sentence of the Appellant on count (4), of illegal possession of firearms is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant. Per – CHIDI NWAOMA UWA, JCA.

STATEMENT OF AN ACCUSED – THE POSITION OF THE LAW ON STATEMENT OF AN ACCUSED MADE TO THE POLICE

Further, it is the law that the statement of an accused person to the police should be written in the language in which the accused made it. Per – CHIDI NWAOMA UWA, JCA.

TENDERING OF STATEMENT – THE POSITION OF THE LAW ON TENDERING A STATEMENT MADE IN ENGLISH AND INTERPRETED IN ANOTHER LANGUAGE

The statement being confessional in nature, was read over to the Appellant before a superior officer in English and same was interpreted into Hausa language and the Appellant thumb printed.  The law is that both the English and Hausa versions ought to have been tendered together. Per – CHIDI NWAOMA UWA, JCA.

THUMBPRINTING OF STATEMENT – THE POSITION OF THE LAW ON THUMBPRINTING OF STATEMENT

The Apex Court has in the past emphasized the position of the law to the effect that the statement the witness (Appellant in this case) ought to have thumb printed or signed is that made in the language the Appellant understood and not the translated version. See, GUNDIRI VS. NYAKO (2014) 2 NWLR (PT. 1391) 211 at 241 – 242, THE STATE VS. ALI SAIDU (2019) LPELR – 47397 (SC) and JUBRIL & ANOR. VS. INEC & ORS. (2019) LPELR – 51318 (CA). Per – CHIDI NWAOMA UWA, JCA.

STATEMENT – ESSENCE OF RECORDING & TENDERING STATEMENT OF THE ACCUSED IN THE LANGUAGE HE UNDERSTANDS

The essence of recording and tendering the statement of an accused person in the language he understands is to ensure the correctness or accuracy of the said statement. See, HAMZA VS. STATE (2019) LPELR – 47 858 (SC) 28. A – D, OLANI PEKUN VS. STATE (2016) LPELR – 4044 (SC) 8, B – D, ASUQUO VS. STATE (2016) LPELR – 40597 (SC) 15 – 16, E – D and OLALEKAN VS. STATE (2001) 18 NWLR (PT. 746) 793.  In ADAMU VS. STATE (2019) LPELR – 46902 (SC) 12 – 13, PARA. A, his lordship Kekere – Ekun, JSC stated the position of the law thus:

“In the instant case, it is argued on behalf of the Appellant, that being illiterate in English Language, for his confessional statement to have been properly before the court for consideration, both the English and Hausa versions ought to have been tendered.  In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in court.  It affords the accused person the opportunity to challenge in court if the need arises, his statement as originally recorded or its translation.  It enables the court to be satisfied that it is his true statement.  For this reason, it was held by this court that the recorder of the statement as well as the interpreter must be produced in court as witnesses; otherwise the statement remains hearsay and inadmissible in evidence.  See, FRN VS. USMAN (2012) 8 NWLR (PT. 1301) 141 at 159 – 160 D –B; 161 C-D; 163 C-H; NWAEZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1 at 20; QUEEN VS. ZAKWAKWA (1960) VOL. 1 NSCC 8 at 9.”

Per – CHIDI NWAOMA UWA, JCA.

CONVICTION – WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED ON A STATEMENT MADE IN ENGLISH WHICH HE DOES NOT UNDERSTAND/ EFFECT OF SUCH CONVICTION

CONVICTION – WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED ON A STATEMENT MADE IN ENGLISH WHICH HE DOES NOT UNDERSTAND/ EFFECT OF SUCH CONVICTION

ORDER OF COURT – THE APPROPRIATE ORDER A COURT SHOULD GIVE WHERE A CHARGE IS ERRONEOUS

The appropriate order would not be a discharge and acquittal of the Appellant but, an order of retrial/trial de Novo.  In respect of an order of retrial/trial de Novo in criminal trials, in SUNDAY KAJUBO VS. THE STATE (1988) 3 SC 132/154, (1988) 1 NWLR (PT. 73) 721 the Supreme Court held that:

“These cases show that what is important is whether evidence as a whole discloses a substantial case against the appellant and whether there are no such special circumstances as would render it oppressive to put the appellant on trial a second time or to order him to be retried or order fresh hearing.”

Per – CHIDI NWAOMA UWA, JCA

ORDER OF DE NOVO – FACTORS TO BE TAKEN INTO CONSIDERATION FOR AN ORDER OF DE NOVO

In UMARU VS. THE STATE (2009) 8 NWLR (PT. 1142) 134 at 147, B-D and OKEGBU VS. THE STATE (1979) 11 SC the factors to be taken into consideration for an order for retrial de Novo were listed as follows:

(a)              The seriousness of the offence and prevalence of the offence.

(b)             The probable duration and expense of the new trial.

(c)              The lapse of the time since the commission of the offence.

(d)             The effect on the quality of evidence and the nature of the first trial, whether substantial or not.

The major consideration is the interest of justice, not only for the Appellant but, also for the victim and the society as a whole also having in mind the prevalence of the offences charged in recent times which has astronomically escalated, the society living in utter apprehension of an attack at any point in time and glaring feeling of insecurity in respect of the type of offences charged, for which the Appellant was convicted in Counts 1, 2 and 3 of the charge.  In KAJUBO VS. THE STATE (SUPRA) at PAGE 744, G the Supreme Court Further held that:

“The evidence does disclose a substantial case against him (the appellant).  His right to his freedom has to be weighed against the security of the general public who are entitled to be protected from armed robbers.  Also, the interest of justice demands that this case be properly tried so that he be acquitted and discharged on the merit or else found guilty and convicted also on the merit.”

Per – CHIDI NWAOMA UWA, JCA.

ORDER OF DE NOVO – PRINCIPLES THAT GUIDE THE COURT IN MAKING AN ORDER OF DE NOVO

In ALFRED ELIJAH VS. THE STATE (2019) LPELR – 48946 (SC) PP. 14 – 15, PARA. C, his lordship Kekere – Ekun, JSC restated the position of the law on the principles that guide the court in making an order of retrial/trial de Novo thus:

“The case of ABONDUNDU VS. THE QUEEN (1959) NSCC (VOL. 1) 56 is considered the locus classicus on the factors to be considered by the court in determining whether to order a retrial or hearing de Novo where the original trial has been declared a nullity.  The factors, which must co-exist, are as follows: (a) That there has been an error in law, including the observance of the law of evidence 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 for 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 to order a retrial would occasion a greater miscarriage of justice than to grant it.  See, ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 665) 74 at 88, AMOS BUDE VS. THE STATE (2016) 12 NWLR (PT. 1525) 154.”

See, also a recent decision of this Court, ADAMU VS. STATE (2020) LPELR – 51382 (CA) PP. 19 – 20, PARAS. C-B.  Per – CHIDI NWAOMA UWA, JCA.

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic Nigeria 1999 (as amended)

Firearms Arms Act

Robbery and Firearms (Special Provisions) Act Cap. R11 Law of the Federation of Nigeria, 2004

Administration of Criminal Justice Act, 2015 (ACJA 2015)

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