AUDU v. THE STATE (2015)

In The Supreme Court of Nigeria

On Friday, the 5th day of June, 2015

SC.14/2013

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria


Between

YAKUBU AHMED AUDU –Appellant

AND

THE STATE- Respondent

…………………….A…………………….

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): The appellant was arraigned with Yakubu Mohammed on a two count charge of Criminal Conspiracy and Culpable Homicide punishable with death contrary to Sections 97(1) and 221(b) of the Penal Code. They pleaded not guilty to the charge and the prosecution called two witnesses to prove its case. The accused neither testified in person nor called any evidence for their defence. The trial Court found them guilty and sentenced them to death by hanging. They appealed to the Court of Appeal, Abuja but the appeals were dismissed. Each of the appellants then appealed to this Court. The appeal by the 2nd accused/appellant which is SC.15/2013 was heard and judgment delivered on 30th January, 2015. The appeal was allowed. The entire proceedings leading up to judgment, conviction and sentence of the appellant by the trial Court which was affirmed by the Lower Court was set aside and a re-trial ordered.

The judgment in Yakubu Mohammed vs The State in SC.15/2013 delivered on 30th January, 2015 applies mutatis mutandis to this appeal. Accordingly, the appeal is allowed and a re-trial of the accused/appellant before the Kogi State High Court is hereby ordered.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I read in advance judgment just delivered by my learned brother, Aka’ahs, JSC. I adopt his reasoning and conclusion and the orders made in the judgment.

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Abuja Division hereinafter called the Lower Court, delivered on the 14/12/2012. The Lower Court affirmed the Judgment of the High Court of Justice, Kogi State which convicted and sentenced the appellant for the offences of conspiracy and culpable homicide punishable with death.

The appellant, Yakubu Ahmed Audu, was not satisfied with the decision of the Lower Court and filed a notice of appeal containing four grounds of appeal. The grounds of appeal were here under reproduced without their particulars.
GROUNDS:
1. The learned Justices of the Court of Appeal erred in law in holding that since learned trial judge had amended the original charge and taken a fresh plea of the appellant, the failure to read, explain and take proper plea of the appellant at the beginning of the trial will not nullify the proceedings.
2. The learned Justices of the Court of Appeal erred in law in holding that the failure by the prosecution to call the investigation Police Officer and tender in evidence the extra judicial statement made by the appellant’s right for fair hearing.
3. The entire proceedings before the Court of Appeal and at the trial Court were a nullity in that the appellant did not have a fair trial.
4. The learned justices of the Court of Appeal erred in law in holding that the prosecution had established its case against the appellant beyond reasonable doubt.

The parties through their respective counsel exchanged their briefs of argument and adopted both briefs before us on 12/3/2015.
– The appellants’ counsel distilled two (2) issues for the determination of this appeal. While the respondent, in his own brief of argument, formulated two issues as well. See pp 59 – 70 of the respondents brief of argument.
The appellants issues are thus.
l. Whether in the entire circumstances of this case, it was not wrong for the Court of Appeal to affirm the judgment of the trial Court, which is a nullity (Ground 5)
2. Whether, having regards to the facts and circumstances of this case, the Court of Appeal was not wrong in holding that the case against the appellant was proved by the prosecution beyond reasonable doubt. (Ground 4)

It is clear to me that there are two appeals by Yakubu Ahmed Audu and Yakubu Mohammed in SC. 14/2013 and SC.15/2013 respectively. The judgment in SC.15/2013 applied Mutatis Mutandis to this particular appeal.
I was privileged to have been allowed by my learned brother Aka’ahs, JSC to see his lead judgment before now. I have digested his reasons and conclusion which tallied with my knowledge on the subject matter. I therefore agree with the lead judgment. I have nothing more useful to add.

For the reasons relied upon by my learned brother Aka’ahs JSC that the trial before the trial Court was pregnant with series of irregularities. How can a Court of law convicted and sentenced the accused persons in their absence? Both convicts also were not granted audience in allocutus even if the Court would not be moved by it.
No, I think it is in order to

…………………….B…………………….

hold that the appeal succeeds in part. This appellant, Yakubu Ahmed Audu in SC.14/2013 shall be retried before another judge of the High Court of Justice, Kogi State. The accused person or persons/Appellant shall be accorded with all the rights of an accused person until he is found guilty. Once there is doubt in the prosecution case the accused must be acquitted and discharged by the trial Court.

OLABODE RHODES-VIVOUR, J.S.C.: The Appellant and Yakubu Mohammed were arraigned before an Ajaokuta High Court, Kogi State on a two count charge for:
a.Criminal conspiracy contrary to Section 97(1) of the Penal Code; and
b. Culpable Homicide contrary to Section 221(b) of the Penal Code.

They both pleaded not guilty, trial proceeded. At the end of the trial, they were both sentenced to death. Their appeal was dismissed by the Court of Appeal. Yakubu Mohammed appealed. That was in SC.15/2013. On the 30th day of January, 2015, this Court allowed the appeal in these words:
“I hereby allow the appeal. I declare the entire proceedings leading up to judgment, conviction and sentence of the trial Court which were affirmed by the Lower Court as nullity, and they are accordingly set aside.”

This Court proceeded to direct that the Appellant should be arraigned immediately before another judge of the High Court of Kogi State for expeditious trial.
In the leading judgment which I was privileged to read in draft, my learned brother, Aka’ahs, JSC held that the judgment in SC.15/2013 applies mutatis mutandis to this appeal. I am in full agreement with his Lordship’s reasoning and conclusions.
The trial of both accused persons before an Ajaokuta High Court was riddled with serious irregularities that rendered the entire trial a nullity, to wit:
(A) Delivering judgment in the absence of the accused person.
The Record of Appeal reveals that judgment was delivered on the 14th day of April, 2010. After judgment was delivered and at the end of judgment, the names of counsel were written, thereafter the following:
“1st Accused counsel – Akpata V.D.
2nd Accused counsel – Akpata V.D.
COURT 
The above judgment was delivered to 14/4/10
STATE COUNSEL
We are grateful for the well research judgment
Sgd by the trial judge.”
The above is wrong. On the date fixed for judgment, the accused persons must be in the dock unfettered, when the case is called, except they had earlier shown signs of violence. Counsel announces their appearances, and it must be recorded by the trial judge. Thereafter the trial judge proceeds to read the judgment. When the trial judge reads his judgment and get to the point where he says:
I find the accused person guilty.”
His lordship must stop reading the judgment and call on counsel to address him on Allocutus. It is after submission on allocutus are recorded that the trial judge proceeds to conclude the judgment by saying what the sentence is. In this case no allocustus was recorded. This is a further grave irregularity which renders the entire trial a nullity. See Asakitikpi v. State (1993) 5 NWLR (Pt. 296) p.641.
The conclusion drawn from the above is that the appellant was not in Court when a death sentence was passed on him. This approach by the learned trial judge contravenes Section 36 of the Constitution.
(B) Irregular appearance of the Appellant in Court.
Section 36 the Constitution guarantees the right to fair hearing. On several days on which proceedings were held, nowhere can it be seen in the Record of Appeal that the Appellant was present in Court. It is mandatory that before each days proceedings the name of the Appellant must be visible on the Record of Proceedings as present on the days proceedings were held.

For this, and the reasoning of my learned brother, Aka’ahs, JSC, the Appellant should be arraigned immediately for a retrial before a judge of Kogi State other than Okpanachi, J.

…………………….C…………………….

NWALI SYLVESTER NGWUTA, J.S.C.:  I read in draft the lead judgment just delivered by my learned brother, Aka’ahs, JSC and I agree with the reasons for allowing the appeal.

Appellant herein and the appellant in SC.15/2013 were charged, tried and convicted together. They were tried on a two-count charge of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 (1) and 221 (b) of the Penal Code.

Their appeal to the Court of Appeal Abuja was dismissed and their conviction and sentence affirmed. One of the two convicts appealed to this Court in SC.15/2013. The appeal was allowed and the judgment, conviction and sentence passed on the appellant by the trial Court and affirmed by the Court of Appeal were set aside and a re-trial ordered.

The judgment in SC.15/2013 applies with equal force mutatis mutandis to the present appeal and ipso facto the appeal ought to be allowed.

For the above and the fuller reasons in the lead judgment, I also allow the appeal and adopt the consequential order in the lead judgment.

Appearances:

Wole Agunbiade with him, T. R. Agbonyi and P. A. Joseph For Appellant(s)

R. A. Alfa (Mrs) DPP Kogi State with him, H. E. Yusuf DDPP, M. A. Abaji SLO, K. A. Danjuma LO. and H. O. Alabi (Miss) For Respondent(s)

Appearances

Wole Agunbiade with him, T. R. Agbonyi and P. A. Joseph For Appellant

AND

R. A. Alfa (Mrs) DPP Kogi State with him, H. E. Yusuf DDPP, M. A. Abaji SLO, K. A. Danjuma LO. and H. O. Alabi (Miss) For Respondent

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