In The Supreme Court of Nigeria
On Friday, the 25th day of January, 2013
Before Their Lordships
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria
ABDULLAHI MOHAMMED- Appellant
THE STATE –Respondent
MAHMUD MOHAMMED, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal Jos Division delivered on 17th May, 2010 in which the Court nullified the judgment of the High Court of Justice of Yobe State given on 24th February, 2005 by which the Appellant was convicted of Culpable Homicide punishable with death and sentenced to death accordingly. The Court of Appeal on allowing the appeal, nullified the judgment of the High Court and ordered for a retrial of the Appellant by another Judge of the Yobe State High Court of Justice on grounds of irregularities in the conduct of the trial which rendered the entire proceedings a nullity.The Appellant was Security Guard with the Government Girls Secondary School Potiskum in Yobe State. The deceased was also working with the Appellant as Security Guard. The Appellant who suspected the deceased of having an affair with his wife, pursued the deceased and struck him with an axe and that act resulted in the death of the deceased. The Appellant was arraigned before the trial High Court and charged with the offence of Culpable Homicide punishable with death under Section 221(a) of the Penal Code for having caused the death of the deceased Ibrahim Mashal by striking him with an axe. At the trial, although the trial Court assigned a Counsel to defend the Appellant, before that Counsel could start the assignment by appearing for the Appellant, the trial Court took the plea of the Appellant without recording that plea in the record of the proceedings of the trial Court. Later, the charge against the Appellant was amended by the prosecuting Counsel but even that amended charge was not also pleaded by the Appellant as the record of the trial Court does not show that any plea was taken by the Appellant before the case went into trial culminating in the conviction of the Appellant for the offence charged under Section 221(a) of the Penal Code for which the Appellant was sentenced to death.
Aggrieved with his conviction and sentence, the Appellant appealed to the Court of Appeal which after affording the Appellant and the Respondent a hearing, allowed the appeal, declared the trial of the Appellant a nullity and ordered the retrial of the Appellant by another Judge of the High Court of Yobe State. The Appellant is now on a further appeal to this Court where his learned Counsel in the Appellant’s brief of argument saw only one issue for the determination of the appeal derived from the three grounds of appeal filed on behalf of the Appellant. The issue is -“Whether the order for retrial made by the Honourable Court of Appeal without giving any reason nor considering the circumstances of the Appellant’s case was proper.”
In the brief of argument filed by the Respondent, the learned Counsel also distilled the following lone issue for the determination of the appeal from the three grounds of appeal filed by the Appellant. The single issue reads –
“Whether it was proper for the Court of Appeal to have ordered a retrial.”
In the argument of the learned Counsel to the Appellant in support of the single issue for the determination of this appeal, the learned Counsel quoted part of the judgment of the Court below at pages 138 – 139 and submitted that the Court below did not provide any basis for ordering a retrial even by inference; that the evidence adduced at the trial and other circumstances of the Appellant’s disposition and that of his witnesses, were not considered before the order of the retrial was made. The case of Eyokoroma & 1 Or. Vs. the State (1979) 6 – 9 SC (Reprint) 3 at 10 – 11, was relied upon in support of this argument that the present case is not a proper case to order a retrial. The argument of the learned Appellant’s Counsel was further strengthened by reliance on the case of Yesufu Abodundu & Ors. v. The Queen (1959) 1 N.S.C.C. 56 at 60 where this Court laid down the principles guiding this Court in ordering retrial in which it was emphasized that all the factors outlined therein must exist conjunctively before an order of retrial is made. Learned Counsel observed that taking into consideration that the Appellant had been in custody since 1998, the uncertainty of whether the Appellant’s wife one of the DW3 witnesses called by the Appellant who is now about 70 years, the Appellant’s father who was about 80 years are still alive to give evidence again, is a matter for consideration before ordering a retrial. That even the Appellant himself is now about 80 years old and the time it may take to try him again, subjecting the Appellant to face the retrial, is against the principles governing the order of retrial as laid down in the cases cited in support of the submission on this issue. In conclusion, the learned Counsel further called in aide the cases of Samaila Umaru v. The State (2009) M.J.S.C. 114 at 125 and Okegbu v. The State (1979) All N.L.R. 200 and urged this Court to hold that inspite of the fact that the trial of the Appellant was a nullity, the order of retrial will cause injustice to the Appellant and urged this Court to decline making such order.
For the Respondent, its learned Counsel agreed with the undisputed facts of this case that although a Counsel was assigned to the Appellant, the record of the trial Court does not show that he appeared for the Appellant and that nor the record of that Court show that the plea of the Appellant was properly taken, the Court below nullified the entire trial and ordered a retrial on the grounds that the trial was in breach of the provisions of the law, particularly the right of fair hearing under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. Learned Counsel agreed with the Court below that the entire trial being a nullity, having regard to the nature and gravity of the offence for which the Appellant was charged, the Court below was right in ordering a retrial particularly with the evidence on record against the Appellant, on the authority of the case of Rufai v. The State (2001) 13 N.W.L.R. (pt.731) 718 at 729 and Kajubo v. State (1988) 1 N.W.L.R. (Pt.73) 721.
From the undisputed facts of this case in which the Appellant who was charged with Culpable Homicide punishable with death under Section 221(a) of the Penal Code was tried and convicted for that offence and sentenced to death in the trial in which he was denied a representation by Counsel and in which trial his plea to the offence he was charged was not taken at all, both learned Counsel to the Appellant and the Respondent are at idem that the Court below was right in its decision that the entire trial of the Appellant resulting in his conviction and sentence, were indeed a nullity. There is no doubt whatsoever that what took place at the trial Court, was far short of what can be described as a trial
in criminal proceedings. The proceedings were in complete breach of the Appellant’s fundamental right of fair hearing enshrined under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria in addition to being against fundamental and mandatory provisions of the Criminal Procedure Code applicable in Yobe State. The only area where the learned Counsel to the parties disagree, is in relation to whether or not in the circumstances of this case where the proceedings were declared a nullity, an order of retrial was appropriate.
In the circumstances of this case, I entirely agree with the learned Counsel on both sides in their respective submissions that the decision of the Court of Appeal given on 17th May, 2010 now on appeal to the effect that the proceedings in the trial of the Appellant including the judgment of that Court convicting and sentencing the Appellant to death for the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code, are indeed a complete nullity. This is because the effect of the non-compliance with the Constitutional provisions in gross violation of the right of the Appellant to have a Counsel of his choice in his defence in the trial for the offence of culpable homicide punishable with death, was to render the entire trial a nullity. SeeEronini v. The Queen 14 W.A.C.A. 366; Adisa v. Attorney-General Western Nigeria (1966) N.M.L.R. 144 and Bawa Jibril v. The State (1968) N.M.L.R. 71. In any case, the law is also well settled that in any trial in a criminal case the calling of witness and the adducing of any evidence in the absence of the Counsel to an accused person being tried is a serious irregularity that renders the trial a nullity as decided in Kim v. The State (1992) 4 N.W.L.R. (pt.233) 17 and Udo v. The state (1988) 1 N.S.C.C. 1163 (1988) 3 N.W.L.R. (pt.82) 316. In the case at hand therefore, the Appellant’s fundamental right breaches under the Constitution and the Criminal Procedure Code of Yobe State has the effect of sweeping out the entire proceedings at his trial as if nothing at all had taken place before the trial Court.
The position is as it were, there has been no trial at all of the Appellant for the offence he was charged. What I have to determine now is whether the court of Appeal was right after nullifying the entire proceedings at the trial Court, in ordering the Appellant to face another trial again. The law is well settled on the principles governing the order for retrial as outlined by this Court in the leading case on the subject in Yesufu Abodundu & Ors. v. The Queen (1959) 1 N.S.C.C. 56 at 60 where this Court stated –
“We are of the opinion that, before deciding to order a retrial, this 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 Procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the Proviso to Section 11(1) of the Ordiance;
(b) that, leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant;
(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial a 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
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
These principles were further reaffirmed by this Court in Adeoye v. The State (1999) 6 N.W.L.R. (Pt.605) 74 at 88.It is important to observe as quite correctly pointed out by the learned Counsel to the Appellant, that none of the above mentioned principles was considered and applied by the Court below after nullifying the proceedings of the trial of the Appellant before ordering the retrial. If the Court below had been properly guided, it would have discovered that having found that the trial of the Appellant was a nullity on the ground that there had been a miscarriage of justice as clearly spelled out under the first condition (a) quoted above, it would have realised that an order of retrial of the Appellant was quite inappropriate under the then prevailing conditions. Furthermore, taking into consideration of the whole evidence on record which clearly disclosed that the Appellant caused the death of the deceased in the surrounding circumstances in which the deceased had been having an affair with the Appellant’s wife who even confirmed the fact to the Appellant, I cannot say that a substantial case of Culpable Homicide punishable with death, in the face of extreme provocation, had been disclosed against the Appellant to justify any order of his retrial.
Looking at the case of the Appellant under condition (c) earlier quoted in the case of Abodundu v. The Queen (supra), the Appellant having spent 14 years in custody as at the date when his appeal was heard by this Court, I have no hesitation in saying that it would certainly be oppressive to put the Appellant on trial a second time as ordered by the Court below.
It is therefore my view that in the circumstances of the present case, it would definitely occasion a greater miscarriage of justice if the order of retrial made by the Court below is upheld or affirmed by this Court. See Okoduwa v. The State (1988) 2 N.W.L.R. (pt.76) 333; Okegbu v. The state (1979) 11 S.C. 1; Barmo v. The State (2000) 1 N.W.L.R. (Pt. 641) 424; Okere v. The state (2001) 2 N.W.L.R. (Pt.697) 397; and Samaila Umaru v. The State (2009) 8 N.W.L.R. (Pt.1174) 134 at 145 – 147 where Musdapher, JSC (as he then was) in similar situations as in the
present case, refused to uphold any order of retrial by the Court of Appeal.
In the final analysis, I find merit in this appeal and I hereby allow it. While the order of the Court below declaring the proceedings of the trial of the Appellant by the trial Court a complete nullity is upheld, the order of the retrial of the Appellant whose trial had been declared a nullity, is certainly not in order under the law, and is accordingly hereby set aside. The Appellant whose conviction and sentence have been nullified, shall be set free forthwith.
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.: I read in draft the lead judgment of my learned brother Mahmud Mohammed, JSC. I agree entirely with his lordship’s reasoning and conclusions that led to the allowing this appeal. I adopt his lordship’s reasoning as mine with tremendous respect. I agree that the lower court was right in declaring the proceedings of the trial court as a nullity. Certainly in this particular appeal it is not all that right for the court to order a retrial of the appellant. The justice of this particular case demands as a necessity that the appellant herein shall be discharged. Order of retrial of any sort is bad in law and cannot be rightly supported. Same is hereby set aside. The conviction and sentence of the appellant in a nullity proceedings cannot be easily sustained, same are hereby set aside. The appellant, Abdullahi Mohammed shall immediately be released from the prison custody. Appeal is allowed order of retrial nullified.
BODE RHODES-VIVOUR, J.S.C.: The issue in this appeal is:
Whether the Court of Appeal was right to order a retrial after declaring the judgment of the trial court sentencing the appellant to death a nullity.
The well settled position of the law is that when a trial is declared a nullity a retrial is ordered if and only if the interest of justice so requires. See
Queen v. Edache 1962 1 ALL NLR p.22
Kajubo v. State 1988 1 NWLR pt.73 p.721
That is to say a retrial would be ordered if the interest of justice requires that the accused person, appellant should be properly tried.
Before ordering a retrial it is mandatory that the judge examines the evidence to see the chances of success. For example if the charge is for an offence which carries a term of years of imprisonment if found guilty and the accused person has already spent those years or more in custody awaiting trial or for trial, a retrial should not be ordered.
If on the other hand the appellant is/was charged for a capital offence and the evidence reveals a likely conviction, a retrial ought to be ordered in the interest of justice. In this case the appellant was charged with culpable Homicide punishable with death contrary to section 221 (a) of the Penal Code. Evidence on record reveals that the appellant killed the deceased because the deceased was having an affair with his wife, a fact that was confirmed. On these facts the appellant has a defence in provocation which if accepted would amount to the appellant being convicted for manslaughter and not murder.
Furthermore the appellant is now 80 years old and has been in custody for over 14 years. The interest of justice clearly does not require a retrial on these facts.
For this and the more comprehensive reasoning in the leading judgment delivered by my learned brother Mahmud Mohammed, JSC which I was privileged to read in draft form, I am in complete agreement that this appeal indeed has merit. I allow it. The order for retrial made by the Court of Appeal is hereby set aside.
NWALI SYLVESTER NGWUTA, J.S.C.: In a purported trial and conviction and sentence of death for culpable homicide punishable with death, the appellant did not join issue with the State, nor was a plea entered for him. The same error was repeated when the charge was amended. Appellant was not represented by Counsel when the trial Court took his plea but failed to record same in the proceedings.
The trial is irreparably flawed and both Counsel agree the whole process leading to the trial, conviction and sentence upon the appellant was a nullity.
The crucial issue is the propriety vel non of the order for retrial made by the Court below. A retrial would imply that there had been a previous trial fraught with irregularity but which was not a nullity.
One of the grounds for ordering a retrial is that:
“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 this Court is unable to say that there has been no miscarriage of justice and to invoke the proviso to section 11 (1) of the Ordinance.”
See Yusuf Abodundu & ors v. The Queen (1959) 1 NSCC 56 at 60.
The judgment appealed against does not fall within the confines of the requirement reproduced above. It is not a case of irregularity in proceedings resulting in a miscarriage of justice. It is a nullity and an order for a retrial is a contradistinction in terms as in law there had been no trial as rightly declared by the Court below.
For the above, I entirely agree with the lead judgment delivered by my learned brother, Mohammed, JSC, having had the
privilege of reading same before now.
I also allow the appeal and adopt the consequential orders therein.
STANLEY SHENKO ALAGOA, J.S.C.: This is an appeal against the judgment of the Court of Appeal Jos Division which set aside the judgment of the Potiskum High Court Yobe State which had convicted and sentenced the Appellant to death for culpable homicide punishable with death. The Appellant was said to have hit the deceased who had had an affair with his wife with an axe as a result of which the deceased died.
The Appellant had appealed on a number of grounds ranging from improper arraignment, insanity, provocation and insufficiency of proof beyond reasonable doubt but based his argument mainly on improper arraignment and lack of fair hearing in the sense that the Appellant was not afforded a lawyer of his choice to defend him. The Court of Appeal discovered from the record of the High Court that although the charge was read to the Appellant, his plea both on the original as well as the amended charge was not taken and that there was actually no record of any legal representation for the Appellant. The court therefore allowed the appeal, set aside the judgment of the trial High Court and ordered a retrial. The Appellant, dissatisfied further appealed to this court on the ground that no reason was given by the Court of Appeal for ordering a retrial when he should have been discharged and acquitted and special circumstances which should have earned him a discharge and acquittal were not taken into consideration such as the fact that he had spent over ten years in custody and the length of time the trial will take. The principles which will guide the court in making an order for retrial have been well settled in a number of cases. In ABODUNDE V. THE QUEEN 4 FSC 70, the then Federal Supreme Court outlined in what has since been regarded as the locus classicus on this subject matter, five principles that a court should take into consideration in making an order for retrial one of which is whether to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
I think that the primary consideration in the grant of an order for retrial is fairness. Was an order for retrial by the court below appropriate in the special circumstances of the case? In this particular case the Appellant was not only a very elderly man but had spent over 14 years in custody. How long a retrial would last and whether at his age he would have been able to withstand the rigours of a retrial would have operated in the mind of the Court below, I think the appeal has merit and should be allowed.
For these reasons and the fuller reasons contained in the lead judgment of my brother Mahmud Mohammed, JSC, I also allow the appeal and set aside the order of retrial. I abide by the other order or orders contained in the lead judgment.
E. Y. Kurah. For Appellant
Abdullahi Yahya. For Respondent