(2021) Legalpedia (CA) 77121
In the Court of Appeal
HOLDEN AT YOLA
Monday, March 29, 2021
Suite Number: CA/YL/130C/2019
CHIDI NWAOMA UWA
BITRUS GYARAZAMA SANGA
JAMILU YAMMAMA TUKUR
KABIRU ABDULLAHI || THE STATE
AREA(S) OF LAW
CRIMINAL LAW AND PROCEDURE
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent acting on the belief that the Appellant alongside others, had conspired to and subsequently carried out the robbery of certain persons while armed brought a 9 (nine) count Charge before the High Court of Justice Adamawa State, charging the Appellant for the offences of conspiracy to commit robbery, while armed with offensive weapons contrary to Section 6 (b) of the Robbery and Firearms (Special provision) Act Cap R11 LFN 2004, and punishable under Section 1 (2) (a) of the Act; and robbery while armed with offensive weapons punishable under Section 1 (2) (a) of the Robbery and Firearms (Special provision) Act Cap R11 LFN 2004. At the close of trial, the learned trial Judge found that the Prosecution had proven the offences against the Appellant (who was absent during the entire trial proceedings) beyond reasonable doubt and found him guilty as charged on all counts. Dissatisfied with the judgment, the Appellant has appealed against the decision.
Issues Of Determination:
Whether refusing the Appellant right to cross- examine some Prosecution witnesses amounts to violation of fair hearing and a breach of a provision of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Whether the trial Court was right to rely on Exhibits A,B,B1,C,D,F,G and H to convict the Appellant for the offence of conspiracy and armed robbery. Whether the trial Court properly evaluated the evidence before it and whether the trial Court properly consider and analyse the address of the (5th Accused) Appellant in arriving at its decision. Whether the trial Court was right to apply the principle in the case of Bonfice Adonike v. The State (2015) 1 SCNJ, to cure the fundamental contradiction of the Prosecution case at the trial Court.
CRIMINAL TRIALS – WHETHER THE PRESENCE OF AN ACCUSED PERSON IS ESSENTIAL AT EVERY STAGE OF THE TRIAL UP TO JUDGMENT
“Learned counsel on both sides are in my view in concord in their submissions on the requirement of the law that in criminal trials, the presence of an accused person jointly charge with other accused persons is essential at every stage of the trial up to judgment and the only exception is where he so misconduct himself and the court finds it necessary to dispense with his presence or he is of unsound mind. This legal requirement is encapsulated in Section 153 of the Criminal Procedure Code Law of Adamawa State which provides: “every accused person shall, subject to the provisions of Section 154, be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.”
CRIMINAL TRIAL- EFFECT OF PROCEEDING WITH TRIAL IN THE ABSENCE OF SOME ACCUSED PERSONS
“In the State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 the Supreme Court in its pronouncement on the issue under discourse emphasized the mandatory legal requirement of the presence of an accused person in court throughout his trial thus: “In the case at hand with regard to the errors of law on the face of the record the inferior court or tribunal it is quite clear from the proceedings of the trial Senior Magistrate of 14th June 1999 at page 21 of the record of Appeal that the 1st Respondent Senior Magistrate I record the 1st accused person absent while 2nd, 3rd and 4th accused persons were present. As all the four accused persons were jointly charged particularly in the charge of Conspiracy and were being jointly tried, the 1st Respondent ought not to have proceeded with the trial in the absence of 1st accused person even though the hearing of that day was for address” The Apex Court went further to pronounce on the effect of proceeding with the trial in the absence of some of the accused persons thus; “The very fact that the 1st Appellant and 3rd Appellant were absent in their joint trial in court on 14th June 1999, when the inferior court was addressed and on 18th April 2000 when the inferior court delivered its judgment this exercise of allowing the trial to proceed in the absence of some of the accused persons being jointly tried had rendered the entire proceedings of that court including the judgment a complete nullity for not only denial of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 but also for failure of that court to give the affected Appellants even a hearing that may not be called a fair hearing.” It is thus clear to all that in a joint trial of accused persons as in the instant case each and everyone of them must be shown to be present at his trial excepting the circumstances mentioned in Section 153 of the Criminal Procedure Code Law of Adamawa State. That is where the accused so misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable. It follows therefore that the entire proceedings from the arraignment of the Appellant and the other accused persons up to the judgment and sentence is a nullity and liable to be set aside. It is worthy to note that this court in a sister Appeal No. CA/YL/221C/2019 Between Sanusi Ibrahim Emmason v. The State & Ors delivered on 14th December, 2020 (unreported) followed the same path as pronounced by the Apex Court, when it held that the trial conducted by the lower court in the absence of the 9th convict who was tried, convicted and sentence to death in absentia was a nullity, set same aside and remitted the case to the lower court for a fresh trial.
STATUS(ES) REFERRED TO
Criminal Procedure Code Law of Adamawa State|Robbery and Firearms (Special provision) Act Cap R11 LFN 2004,|
1. I. M. Galadima Esq. with A. A. Adam Esq. for the Appellant.|2. M. A. Umar, Senior State Counsel II Adamawa State Ministry of Justice for the Respondent.||||
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