SADIQ MIJINYAWA v. THE STATE & ORS

“The legal requirement in a criminal trial where there is more than one accused person was spelt out in Section 153 of the Criminal Procedure Code Law of Adamawa State, as follows: “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 of otherwise as to render their continuance in his presence impracticable.” No doubt the 9th convict was tried and convicted in a joint trial with the appellant and others in absentia. The learned counsel to the Respondent has not argued that he was present throughout the trial but argued that his absence throughout the trial did not occasion a miscarriage of justice. The position of the law where an accused person is absent during a joint trial is that there must be an order in writing dispensing with the presence of the accused person either by suspending the trial against him or by striking out his name, these are exceptions to requiring the presence of an accused person at the trial. Section 259 of the Criminal Procedure Code Law provides thus: 259 (1) “The court at any stage of the trial where there are several accused may by order in writing stating the reasons therefore stay the proceedings of the joint trial and may continue the proceedings against each of any of the accused separately.” The pursuant of the above provision was explained in the case of Mokelu vs. Federal Commissioner For Works And Housing (1976) 1 NMLR 329 at 333. The learned counsel to the Respondent has not argued that the procedure under Section 259 (1) above was complied with, which would have rightly exempted the 9th convict from appearing in court throughout the trial. The trial court therefore ought to have stayed proceedings when the court noted that one of the accused persons was absent from court an arraignment of the rest of the convicts in a joint trial. See, Mohammed vs. State (2018) 5 NWLR (PT. 1613) 540 at 56, PARAS. D – E. at Pages 573 – 574, PARAS. G – B the Supreme Court held thus: ”In the case of State vs. Lawal only two of the accused persons were absent on the date when counsel delivered their trial addresses and on the date of judgment. The Supreme Court had held that by virtue of their absence at those occasions, the whole of the proceedings and judgment were a nullity and the accused persons who were present had right to challenge the judgment by way of judicial review so the proceedings could be quashed.”

Per C. N. UWA, J.C.A