CORAM
Tijjani Abubakar-Justice of the Supreme Court of Nigeria
Haruna Simon Tsammani-Justice of the Supreme Court of Nigeria
Stephen jonah Adah-Justice of the Supreme Court of Nigeria-habeeb adewale olumuyiwa abiru
mohammed baba idris-Justice of the Supreme Court of Nigeria
Habeeb Adewale Olumuyiwa Abiru- Justice of the Supreme Court of Nigeria
PARTIES
SALEH MUAZU
APPELLANTS
KANO STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, CRIMINAL PROCEDURE, ARRAIGNMENT, RETRIAL, FRESH TRIAL, NULLITY OF PROCEEDINGS, DOUBLE JEOPARDY, CONSTITUTIONAL LAW, CULPABLE HOMICIDE, MURDER, CONSPIRACY, APPEAL, PRACTICE AND PROCEDURE, FAIR HEARING, PLEA TAKING, AMENDMENT OF CHARGES
SUMMARY OF FACTS
The Appellant was charged alongside 8 other co-accused persons before the Kano State High Court on three counts: conspiracy, culpable homicide punishable with death, and causing hurt, contrary to Sections 97, 221, and 241 of the Penal Code (Cap 105) Laws of Kano State respectively. The charges arose from an incident on 3rd November 2011 at about 2230hrs at Garin Babba Village, where the accused allegedly attacked and killed one Alh Sabo Jae while he slept, using sticks and swords, and also caused serious injuries to one Idris Muhammad Jae.
The prosecution called four witnesses (PW1-PW4) and tendered ten exhibits during trial. The defense called twelve witnesses. On 30th June 2014, the trial judge delivered a comprehensive judgment finding the Appellant and his co-accused persons guilty and convicted them of murder, causing hurt, and conspiracy. They were all sentenced to death under Section 221 of the Penal Code and one month imprisonment for causing grievous hurt.
The Appellant appealed to the Court of Appeal, Kano. On 26th March 2019, the Court of Appeal allowed the appeal and made an order for retrial before another Judge other than Hon. Justice Amina Adamu Aliyu who had tried and convicted the Appellant. The Court of Appeal found that the entire trial was a nullity because when the charge was orally amended on 17th December 2013, no fresh plea was taken from the Appellant or any of his co-accused persons. The Court found that the amended charge was not read and explained to the Appellant and other accused persons, constituting unpardonable blunders that could not be redeemed.
Aggrieved by the order of retrial, the Appellant further appealed to the Supreme Court, arguing that the factors for ordering a fresh trial did not co-exist in this case and that the evidence against him was weak and almost non-existent.
HELD
1.The appeal was dismissed as patently lacking in merit.
2.The Court held that the arraignment of the Appellant at the trial Court failed to satisfy the requirements under Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 187(1) of the Criminal Procedure Code Laws of Kano State (1991).
3.The Court affirmed that where a charge is amended after an accused has taken his plea, a fresh plea must be taken before continuation of the trial, and failure to do so renders the entire trial a nullity.
4.The Court held that once a trial is adjudged a nullity, except where putting the appellant to trial again would be oppressive, justice and fairness demand that the accused be subjected to a fresh trial.
5.The Court rejected the argument that the length of time spent in custody or delay in prosecution should automatically result in discharge, emphasizing that the state and victims also deserve justice.
6.The Court found that all the established factors for ordering a retrial were satisfied and that refusing to order retrial would occasion a greater miscarriage of justice than granting it.
7.The judgment of the Court of Appeal delivered on 26th March 2019 was affirmed, and the Appellant was ordered to face retrial.
ISSUES
Whether in the circumstances of this case, the learned justices of the Court of Appeal were right to make an order for a fresh trial of the Appellant when the factors for the Court to order a fresh trial do not co-exist in this case?
RATIONES DECIDENDI
ARRAIGNMENT PROCEDURE – INTEGRAL PART OF CRIMINAL TRIAL PROCESS
“The arraignment of an accused person constitutes an integral part of the initiating process in criminal trials, the process must be followed strictly, arraignment must be made in compliance with the provisions of Sections 187(1) of the Criminal Procedure Code, and Section 215 of the Criminal Procedure Act, depending on the venue of trial.” – Per TIJJANI ABUBAKAR, J.S.C.
FAILURE TO COMPLY WITH ARRAIGNMENT PROCEDURE – NULLITY OF PROCEEDINGS
“Failure to comply with any of the above renders the entire proceedings no matter how well conducted a nullity.” – Per TIJJANI ABUBAKAR, J.S.C.
AMENDMENT OF CHARGES – REQUIREMENT FOR FRESH PLEA
“The lower Court, rightly, found in his favour by declaring the said trial a nullity. It could not have been otherwise for what crystallizes from the decisions of the Court is that, where in the course of trial, a charge or information is amended, a fresh plea must be taken. Failure to do so would render the trial null and void.” – Per this Court in AMOS BUDE V. THE STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
AMENDED CHARGES AS FRESH CHARGES – PLEA REQUIREMENTS
“Indeed, the law is settled, that where a charge upon which the accused person is being tried is amended by the prosecution in the course of the trial, the trial Court must ask the accused to once again plead to the amended charge. The reason being that the amended charge constitutes a fresh charge which must equally be pleaded thereto.” – Per this Court in AISHA MAHMUDA V. THE STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
CONSTITUTIONAL PROVISION FOR RETRIAL – SUPERIOR COURT POWERS
“Now, by the provisions of Section 36 (9) of the 1999 Constitution (as altered/amended), a superior Court is vested with the requisite jurisdiction to make an order in appropriate cases, for the trial of a person for a criminal offence for which he had earlier been tried by a Court of competent jurisdiction and whether he was convicted or acquitted by that Court for such an offence.” – Per this Court in JOSEPH V. THE STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
RETRIAL VERSUS DOUBLE JEOPARDY – LEGAL PRINCIPLES
“It will be most dangerous to take the position that once a trial is declared a nullity, the order that must follow is a discharge and not an acquittal. It is clear from the above cases that such is not the position of the law. There cannot be any such law and if there is any such law it must give way to the well-established principles of fairness and fair play in our jurisprudence.” – Per this Court in JOSEPH V. THE STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
RETRIAL ORDERS – FACTUAL AND CIRCUMSTANTIAL CONSIDERATIONS
“It cannot invariably be the position of the law that once a Court declares a trial a nullity, the order that should follow must be one of discharge and not an acquittal. Law is not mathematics where 1 + 1 is 2, today and forever. In law, 1+1 could 1 in the first case or 2 in the second case or 3 in the third case. It depends on the facts and circumstances of each case.” – Per this Court in JOSEPH V. THE STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
CONDITIONS FOR ORDERING RETRIAL – COMPREHENSIVE REQUIREMENTS
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied: i. that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand, the trial was not rendered a nullity, and on the other hand the appellate Court is unable to say that there has been no miscarriage of justice; ii. That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant; iii. That there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time; iv. That the offence or offences of which the Appellant was convicted or the consequences to the Appellant or any other person of the convicted or acquittal of the Appellant, are not merely trivial and v. that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.” – Per this Court in MOHAMMED V. STATE (as quoted by TIJJ
JUSTICE IN CRIMINAL TRIALS – THREE-WAY CONSIDERATION
“Even where the Appellant has already spent some time in prison custody, the general sympathy would be that let him go home rather than be subjected to another round of trial, some advocates even resort to misquoting the Constitution that so doing will amount to double jeopardy, this is far from it, I am convinced that the society and the victim also deserve justice and in ensuring that justice is done the accused must be subjected to another round of trial especially where the evidence against him is overwhelming and the offence charged is not trivial.” – Per TIJJANI ABUBAKAR, J.S.C.
DETERMINATION OF OPPRESSION IN RETRIAL – LEGAL CONSIDERATIONS
“The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the Court must be satisfied:- (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that there has been no miscarriage of justice; (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused, (c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial the second time, (d) that the offence or offences of 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 I that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. All these factors must coexist before a case may be sent back for retrial.” – Per this Court in ONWE V. STATE (as quoted by TIJJANI ABUBAKAR, J.S.C.)
NULLITY OF TRIAL AND RETRIAL ORDERS – JUDICIAL APPROACH
“A retrial is usually ordered where an appellate Court sets aside or quashes a conviction or judgment from a lower Court or trial Court due to error in law, procedural irregularities or miscarriage of justice. The underlying essence of ordering a retrial is to further the interest of justice after the trial first conducted has been nullified by the appellate Court. A trial that has been declared a nullity signifies that there had never been a proper or legitimate trial.” – Per STEPHEN JONAH ADAH, J.S.C.
JUSTICE IN CRIMINAL TRIALS – STATE, ACCUSED, AND VICTIM
“Justice in a criminal trial is not only reviewed in terms of the right of the accused but also in terms of the state and the victim. The state represents the public conscience, the law and order, while the victim is the real soul that bears the brunt of the act of the accused or one affected by the mischief of the accused person. The state, at the trial, is the one who pulls out public fund and public machinery to ensure that the public is defended and protected against the mischief of the accused while the victim who bears the pains and pangs of the mischief will always cry out for justice and retribution.” – Per STEPHEN JONAH ADAH, J.S.C.
RETRIAL AS FUNCTION OF JUSTICE – COMPREHENSIVE CONSIDERATION
“From that decision, it follows that ordering a retrial is absolutely a function of the interest of justice. It is indeed, erroneous to think of the interest of justice in relation to an accused person alone. Justice in a criminal trial is not only reviewed in terms of the right of the accused but also in terms of the state and the victim.” – Per STEPHEN JONAH ADAH, J.S.C.
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code (Cap 105) Laws of Kano State of Nigeria, 1991
3. Criminal Procedure Code Laws of Kano State (1991)
4. Criminal Procedure Act
5. Supreme Court Act