Legalpedia Citation: (2025-04) Legalpedia 72526 (CA)

In the Court of Appeal

Wed Apr 9, 2025

Suit Number: CA/G/8CA/2024

CORAM

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

PARTIES

HUSSAINI MOHAMMED

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, ARRAIGNMENT, FAIR HEARING, PRACTICE AND PROCEDURE, HUMAN RIGHTS, APPEAL, NULLITY OF PROCEEDINGS, RETRIAL

SUMMARY OF FACTS

The case revolves around events that began when the Appellant’s twin brother, Hassan Mohammed, was informed that the deceased, Zakaria Abba Mustapha, broke into his room and took his laptop. Hassan went to the deceased’s house to demand the return of the laptop, which led to an altercation that escalated into a physical fight. The Appellant joined the fight and was alleged to have beaten the deceased with a belt, while his twin brother, Hassan, used the beak of a bird to stab the deceased. A few days later, the deceased died from the injuries sustained during the incident.

The Appellant and his twin brother were subsequently charged before the High Court of Borno State in CHARGE NO. BOHC/MG/CR/83/2018 for the offenses of joint act and culpable homicide under Sections 79 and 224 of the Penal Code Law, Cap. 102, Laws of Borno State of Nigeria, 1994.

After trial, the lower court convicted the Appellant and sentenced him to fourteen years imprisonment on December 13, 2018. Dissatisfied with the decision, the Appellant obtained an order from the Court of Appeal for extension of time to appeal on January 26, 2023. He filed his original Notice of Appeal on February 15, 2023, and an Amended Notice of Appeal was filed on January 30, 2024, which was deemed properly filed on November 12, 2024.

HELD

  1. The appeal was allowed.
  2. The court held that there was no valid arraignment of the Appellant as required by Section 187 of the Criminal Procedure Code and Section 36(6) of the 1999 Constitution, making the entire proceedings a nullity.
  3. The judgment of the lower court, including the conviction and sentence imposed on the Appellant, was set aside.
  4. The matter was remitted to the High Court of Borno State for a fresh trial by another judge to be assigned by the Chief Judge, not being F. Umaru, J.

ISSUES

  1. Whether in the circumstances of the record of appeal and the proceedings at the lower Court there was proper and valid arraignment necessitating the trial and subsequent conviction of the Appellant by the lower Court?
  2. Whether in the circumstances of the facts and evidence on record the lower Court was right when it held the prosecution to have proven its case beyond reasonable doubt and thus convicted the Appellant on same?

RATIONES DECIDENDI

VALID ARRAIGNMENT – MANDATORY REQUIREMENTS FOR COMMENCEMENT OF TRIAL

It is the minimum requirement of the law that necessary steps to a valid arraignment as provided in Section 187 of the Criminal Procedure Code must be complied with in order to ensure that the constitutional provision of fair hearing which inures in favour of an accused person, especially as it relates to Section 36 (6) of the 1999 Constitution which, inter alia, requires that every person charged with a criminal offence shall be informed promptly in the language he understands and in detail of the nature of the offence, is satisfied. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

STEPS FOR VALID ARRAIGNMENT – FUNDAMENTAL REQUIREMENTS TO BE FOLLOWED

It is the requirement of the law that for there to be a valid arraignment, these mandatory stipulations must be complied with, namely: a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order. b) The charge or information shall be read over and explained to the accused 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 to the charge thereto instantly otherwise, where there is such an objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith. d) The plea of the accused shall also be instantly recorded by the Court.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

IMPORTANCE OF ARRAIGNMENT – NOT A MERE TECHNICALITY

An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge. All the authorities recognize that where there is no proper arraignment, there is no trial. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Ogundare, JSC in OKEKE vs. THE STATE)

ROLE OF RECORDS OF APPEAL – BINDING NATURE AND RELIANCE

An appeal is heard based on the Records of Appeal. The law is settled beyond peradventure that the Records of Appeal bind the parties and the Court, and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records of Appeal and any extraneous facts not contained in the Records of Appeal would be mere conjecture and the Court cannot rely or act on the same. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EFFECT OF LACK OF VALID ARRAIGNMENT – TRIAL A NULLITY

Without a valid arraignment of the accused person, no trial in law would have commenced and, no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Iguh, JSC in OKEKE vs. THE STATE)

RECORDING OF ARRAIGNMENT – NEED FOR EXPLICIT RECORD

The submission of learned counsel or a cursory reference in the judgment that plea was taken, does not establish compliance with the necessary steps for a valid arraignment. The Records of Appeal must bear out strict compliance with the necessary steps for a valid arraignment. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONSTITUTIONAL DIMENSION OF ARRAIGNMENT – FAIR HEARING RIGHTS

The proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused person’s constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before evidence was adduced, it constitutes a flagrant non-compliance with Section 187 of the Criminal Procedure Code, which impinges on the constitutional right of the accused person to a fair hearing.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ARRAIGNMENT AND JURISDICTION – EFFECT ON COURT’S POWER

It is compliance with Section 187 of the Criminal Procedure Code that gives the trial Court jurisdiction to try the accused person arraigned before it. Where the said provision has not been complied with before commencement of hearing and adduction of evidence, the trial Court has no jurisdiction to exercise. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRESUMPTION OF REGULARITY – LIMITATION IN ABSENCE OF VALID ARRAIGNMENT

I took into cognisance, the stipulations on the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act. The said presumption is a rebuttal presumption. It will however not avail the Respondent where, as in this case, the Records of Appeal is lucent that the plea of the Appellant was not taken by the lower Court before adduction of evidence. The presumption of regularity cannot avail where what was done at the trial Court cannot be said to be substantially regular in the face of the non-compliance with the mandatory provisions of Section 187 of the Criminal Procedure Code. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ORDERING RETRIAL – CONDITIONS AND CONSIDERATIONS

It is trite law that when a trial is declared a nullity a fresh trial or retrial is ordered if and only if the interest of justice so dictates. See QUEEN vs. EDACHE (1962) 1 ALL NLR 22 and KAJUBO vs. THE STATE (supra). A retrial or fresh trial would be ordered if the interest of justice requires that the accused person, the appellant should be properly tried. Before ordering a retrial, it is mandatory that the Court examines the evidence to see the chances of success. – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRINCIPLES GUIDING RETRIAL ORDERS – APPLICABLE FACTORS

Although the rules guiding an appeal Court in ordering a re-trial are not exhaustive and may be added or modified from time to time, an appeal Court would order a retrial if it is satisfied as to the following: 1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal Court to say there has been no miscarriage of justice. 2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused. 3. That there are no special circumstances which would make it unjust to put the accused on trial a second time. 4. That the offence for which the accused is charged and their consequences are serious in nature, and 5. That to refuse an order of retrial would occasion a greater injustice than to grant it.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (citing ABODUNDU vs. THE QUEEN (1959) 4 FSC 70)

ADDITIONAL FACTORS FOR RETRIAL – BALANCING INTERESTS

Matters to consider in deciding whether to make an order of retrial include the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone by the accused person going through a fresh trial, the lapse of time since the commission of the offence and its effect on the quality of the evidence and the nature of the case of the prosecution against the prisoner as disclosed in the first trial, whether substantial or not.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (citing OKEGBU vs. THE STATE (1979) 11 SC 1)

BALANCING JUSTICE – INTERESTS OF ACCUSED AND VICTIM

Justice is not just for the accused person but for the victim as well. Therefore, if the circumstances of both the accused and the victim are considered together, the order of fresh trial should not in my opinion be regarded as oppressive.– Per UGOCHUKWU ANTHONY OGAKWU, J.C.A. (quoting Uwais, CJN in YAHAYA vs. THE STATE)

CASES CITED

STATUTES REFERRED TO

  1. Constitution of the Federal Republic of Nigeria, 1999
  2. Criminal Procedure Code (Section 187)
  3. Penal Code Law, Cap. 102, Laws of Borno State of Nigeria, 1994 (Sections 79 and 224)
  4. Evidence Act, 2011 (Section 168(1))
  5. Administration of Criminal Justice Law, 2023 (Section 217)

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