UMAR MOHAMMED v. THE STATE & ORS

“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.”

“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.”