Amina Musa V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI JSC

This appeal is against the judgment of the Court of Appeal Kaduna Division delivered on the 12th February,2014 wherein their Lordships dismissed the appeal of the appellant and affirmed the conviction and sentence passed by the trial court. The appellant was not satisfied with the judgment and has now filed Notice of Appeal on the 26/2/14 to this court and containing five grounds. The three counts charge preferred against the appellant at the trial court are as follows:- FIRST HEAD OF THE CHARGE That you, AMINA MUSA (f) on or about the 6th day of February, 2009 at about 0700 hours at Tsakani Fulani Settlement Area of Roni Local Government Area within the Jigawa Judicial Division committed culpable homicide punishable with death by causing the death of one Yusuf Musa 7 years old by poisoning him and thereby committed an offence contrary to section 223 of the penal code, Cap. 107 Laws of Jigawa State, 1998 and punishable under section 221(b) of the penal code, Cap. 107, Laws of Jigawa State, 1998. SECOND HEAD OF THE CHARGE That you, AMINA MUSA (f) on or about the 6th day of February, 2009 at about 0700 hours at Tsakani Fulani Settlement Area of Roni Local Government Area within the Jigawa Judicial Division committed culpable homicide punishable with death by causing the death of one Nana Dausiya Musa (f) 3 years old through poisoning her and thereby committed an offence contrary to section 223 of the penal code, Cap. 107 Laws of Jigawa State, 1998 and punishable under section 221(b) of the penal code, Cap. 107, Laws of Jigawa State, 1998. THIRD HEAD OF THE CHARGE That you, AMINA MUSA (f) on or about the 6th day of February, 2009 at about 0700 hours at Tsakani Fulani Settlement Area of Roni Local Government Area within the Jigawa State Judicial Division committed culpable homicide punishable with death by causing the death of one Hafsatu Ya’u (f) 7 months old by poisoning her and thereby committed an offence contrary to section 223 of the penal code, Cap. 107 Laws of Jigawa State, 1998 and punishable under section 221(b) of the same penal code. The appellant was arraigned upon; three counts charge supra wherein she was accused of causing the death of three different children, namely Yusuf Musa (m), 7 years old, Nana Daus ya Musa (f), 3 years old and Hafsatu Ya’u (f), 7 months old, by poisoning contrary to section 223 of the Penal Code Law of Jigawa State. The initial trial did not proceed for the reason that the judge who started the case had died. At the subsequent trial denovo, the appellant was again arraigned and pleaded not guilty to counts 1 and 3 of the charge. No plea was taken on count 2. The appellant was however convicted and sentenced to ten years imprisonment on each of the three counts. At the said trial denovo, the prosecution led evidence to establish the alleged offence through the testimonies of PW1, PW2, PW3 and PW4 through whom Exhibits P1, P2 and P2A were tendered and admitted. The lower court by a unanimous judgment delivered on the 12th February, 2014 affirmed the conviction and sentence of the appellant by the trial court. It is the dismissal of the appellant’s appeal that has prompted the appeal now before us. In accordance with the rules of court, parties filed and exchanged their respective briefs of arguments. The appellant’s brief was dated 25th July 2014 and filed 6th August 2014; it was also settled by Mustapha Bulama of Counsel. The respondent’s brief of argument was dated 17th November 2015 and deemed filed 13th January 2016 by the order of this court. The said brief was settled by one Sani Hussaini Sarin Gabbas, the Hon. Attorney General Jigawa State. On the 13th October, 2016 when this appeal came up for hearing, counsel to both parties were in court and each adopted his respectively brief of argument and relied thereon. The learned counsel Mr. Mustapha Bulama who represented the appellant urged the court to allow the appeal while Mr. Sani Hussaini Garin Gabbas, the Hon. Attorney General, on behalf of the respondent, submitted that the appeal be dismissed as lacking in merit. From the five grounds of appeal, two issues were distilled on behalf of the appellant as follows:- ISSUE ONE Whether the learned Justices of the Court below were right in arriving at their conclusion that the prosecution did prove its case against the appellant beyond reasonable doubt as mandatorily prescribed by the law. Grounds 2, 3, 4 and 5. ISSUE TWO Were the Justices of the Court below right in setting aside the findings made by the trial court that the appellant did not cause the death of Yusuf Nana Fawziyya and Hafsatu without considering the overall effect of these findings on the entire trial and judgment passed by the trial court in convicting the appellant. The lone issue formulated on behalf of the respondent is at page 2 of its brief of argument and questions thus:- “Whether the lower court was right when it held that the prosecution had at the trial court proved its case beyond reasonable.(sic)” At this point in time, I wish to state quickly that, on a careful analysis of issue 1, as formulated by the appellant, same reveals a serious challenge touching on the propriety and validity of the trial of the appellant and consequently, on the very foundation of the appeal now before us. The foregoing conclusion stems from the elementary principle of law which firmly establishes that an appeal is a product of a ratio decidendi It is also true to say that there cannot be a ratio in the absence of a valid judgment. Put differently, an appeal, which is a complaint against a decision of a court of competent jurisdiction, presupposes the existence of such valid decision, and cannot be from an abstract. Therefore, the determination of this appeal is predicated on whether or not there is a valid and existing judgment which should give a subject or reason grounding the appeal. The appellant’s .counsel, for purpose of driving his point home, has drawn the attention of this court to the proceedings that took place at the trial court when the appellant was arraigned denovo. This, counsel submits is necessary in view of the fact that the proceedings at initial arraignment before Justice Maigari (now deceased) is not relevant except as specified under section 34 of the evidence Act 2004 as amended (now section 46 of Evidence Act 2011). It is the submission of counsel that the appellant was arraigned at the trial denovo for two counts charge as against what was contained in the trial court’s judgment; that the court below erred in affirming the final conclusion made by the trial court in finding the appellant guilty as charged. It is pertinent to state also that the learned counsel for the appellant did clearly point out the dissatisfaction expressed by the lower court in the way and manner the learned trial judge conducted the proceedings before him, which in a nutshell was fallen short of the Constitutional requirement of fair hearing as enshrined in section 36(1) of the Constitution 1999. It is the submission of counsel that the remarks made by the lower court were sufficient to cast doubt as to all conclusions recorded as well as the appraisal made by the trial court. Consequently, that in the circumstances, the court below ought to have set aside the trial; that in the absence of doing so, the counsel has now urged us to set aside the entire proceedings before the trial court and discharge the appellant herein. The learned counsel for the appellant, in his further submission is challenging critically, the method followed by the lower court, which having set aside the first findings of the judgment of the trial court again proceeded to affirm the aspect which contradicted the same finding. The method, counsel argues is tantamount to picking and choosing of evidence which should not be allowed as it was reported in the case of Odi V. Iyala (2004) All FWLR (Pt. 207) at 592. The counsel has urged us to take the totality of the inconsistency, contradiction also the lapses of the trial judge into account and set aside the entire judgment passed in the interest of fair hearing while the appellant should be discharged and acquitted. In response to the foregoing observations raised by the appellant’s counsel, which sought to challenge the propriety of the appellant’s arraignment, the counsel for the respondent submits summarily that it was wrong for the appellant to raise or argue an issue on appeal, which was not canvassed at the trial court; that the notice of appeal did not make the point of arraignment an issue. The learned counsel urges this court in the circumstance to discountenance the argument by the appellant’s counsel in that behalf as contained in paragraph 4.02 of the appellant’s brief of argument. The learned counsel in further submission, posits also that assuming the fresh issue raised and argued was accepted, a poser question is, whether that alone can vitiate the findings by the trial court which was affirmed at the lower court? On the concurrent findings of facts by the two lower courts, learned counsel submits that this court should not interfere therewith unless a miscarriage of justice is occasioned therefrom. Counsel cites the case of Michael V. The State (2008) 3 NWLR (Pt. 1104) 361 at 384 a decision of this court. The counsel on the totality urges that the appeal be dismissed while the conviction and sentence of the appellant by the two lower courts should be affirmed. In a nutshell, and for the determination of the propriety or not of the arraignment, I will seek to restate quickly that the observation raised by the appellant’s counsel herein is very fundamental as it touches squarely on the competence of the entire trial and also the validity of the proceedings. In other words, with an appeal being a product of a valid subsisting judgment, there can be no appeal where a proceeding before a court is held as null and void and non-existent. Allegation of an absence of arraignment is an error in law which goes into the jurisdictional competence of the court. It is elementary also to restate the position of the law that jurisdictional issues can be raised at any stage of the proceedings, even if for the first time on appeal. However, this is not to alter the well settled principle of law that new issues can be raised on appeal only by seeking and obtaining the leave of court. The nature of the error alleged by the appellant herein is that of law and the consequential effect has rendered the entire proceeding a nullity. In order to resolve the controversy raised by the appellant’s counsel, it is pertinent to peruse and examine closely the proceedings of the trial court as shown on the record of appeal, particularly at page 10. The initial charge leveled against the appellant was for three counts as reproduced earlier in the course of this judgment. At page 10 of the record for instance, the charge was read out to the appellant denovo and her plea was taken on the 1st and 3rd counts and in respect of which she pleaded not guilty thereto. There was however no record as to whether a plea was taken at all from the appellant on that day in respect of the 2nd count. The foregoing proceeding was taken on the 10/2/2010 and the matter was thereafter adjourned for hearing on the 2/3/2010. Also at page 12 of the record of appeal, the trial of the accused/appellant proceeded to Wearing and again her plea was not taken on count 2. At page 140 of the Record of appeal further, the information records the end of the trial and the proceeding was adjourned for judgment which was read on the 2/12/2010. The trial court’s judgment spanned out from pages 42 – 50 of the record. From the totality of the judgment the reproduction of the following excerpts at pages 42, 48 and 50 are relevant as follows:- “The accused person pleaded not guilty to the three head of counts of charges (sic) read to her. ——————————————————————————————————————————————————— In essence the defence counsel failed to disprove the evidence of the prosecution. Without much Ado I hereby hold the view that the prosecution has proved its case beyond reasonable doubt against the accused person. This court hereby found the accused person guilty as charged and she is hereby accordingly convicted on the three counts of charges (sic). ALLOCUTUS: —————————————————————————- ————————————————————————– This court hereby sentenced the convict to 10 years on each head of count as per the charge sheet The convict to serve the sentences to run concurrently I wish to re-iterate for emphasis that the charge sheet which was reproduced earlier in this judgment contains three counts charge upon which the appellant was convicted and sentenced in the judgment. To the contrary and as shown on the record, also reference supra, the appellant’s plea was taken only on counts 1 and 3 on her arraignment. As rightly submitted and argued by the counsel for the appellant, the proceeding at the initial arraignment before Justice Maigari is not relevant for the trial denovo except as specified under section 34 of the Evidence Act 2004 as amended, now section 46 of the Evidence Act 2011. I am quick to say also that the circumstance warranting invocation of the exception is not applicable to the case at hand. A further error and defect on the charge sheet against the appellant which is very obvious is where the proceeding of the trial court did not state what particulars are contained j in counts 1 and 3 of the charge or under which section of the Penal Code the charge or the counts were framed. Tie appellant’s grouse in the circumstance is obvious therefore; that is to say, that she was arraigned at the trial denovo for two counts charge as against a three count charge which is contained in the trial court’s judgment and shown at page 48 of the record of appeal reproduced earlier. It is unfortunate, I reckon that the lower court should have fallen easily also into the same trap as the trial court and thereby concurring and endorsing the proceeding conducted erroneously, without question. For instance, at the lower court, their Lordships in their opening judgment at page 111 of the record of appeal were quick to say that “Appellant was convicted in the three counts charge of culpable homicide punishable with death,” arid proceeded to restate the three counts. I further wish to stress that their Lordships were well informed as it was re-echoed in their judgment at page 112 of the record [that the appellant was arraigned for] a trial denovo on 10/2/2010. In affirming the conviction of the appellant and finding her guilty also of tie of fence of culpable homicide as charged, their Lordships were at a cross road and following which they questioned and expressed utter dismay as to why the trial court should mete a lesser punishment on the appellant under section 225 of the Penal Code as against death sentence and thus reducing same to 10 years imprisonment. The lower court proceeded and dismissed the appeal by endorsing the trial court’s judgment. A relevant case law in support of the issue at hand is the case of Effiom V. State (1995) 1 NWLR (Pt. 373) 507 which re-establishes the proposition that the trial of an accused person commences on arraignment and taking of his plea. At page 582 of the report, this court per Wali, JSC stated thus:- “A trial of an accused person commences when his plea is taken see unreported judgment of the Court in SC.68/1966 delivered on 17th October, 1966. Oyeyemi V. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661 and Asakitikpi V. The State (1993) 5 NWLR (Pt. 296)652. So the right to fair hearing will commence from the time an accused person is brought before court and his plea is taken. The period does not include the pre-trial stage to wit: the period covering the time he was arrested to the time he was arraigned in court and his plea taken. See Sofekun V. Akinyemi (1981) 1 NCLR 135.” Further still and also in the same foregoing authority Onu, JSC at page 555 of the report re-iterates and said:- “Where pleas of an accused person are taken before two trial judges successfully, the plea that is material is the plea taken before the very judge who conducted the trial to finality.” The concept governing the process of arraignment which must precede the taking of a plea is firmly grounded. See also the case of Adio V. State (1986) 3 NWLR (Pt. 31) 714 a decision of this court. On the community reading of the foregoing conclusions arrived at, it is obvious that the conviction for all “he three counts, in the light of defect, is grossly erroneous, and has rendered the entire verdict by the two lower courts a nullity. It is elementary to state the settled principle of law that an appellate court is bound by the record of appeal only, which same is also binding on all parties and their counsel. See the case of Olufeagba V. Abdulraheem (2009) 12 SC NJ 349 at 383. It is obvious without more that, the conviction of the appellant for all the three counts of the charge, has breached her right of fair-hearing, as rightly submitted by her learned counsel. Our constitutional provision is very clear and unambiguous on the principle of fair hearing. There is the presumption of innocence on the part of the accused and her right guarantees that she is to be well informed of the charge against her which must be laid clear and bare in terms of the language she understands. It is also her right that she should not only be told the nature of the offence leveled against her but also the relevant provision of law prohibiting the act and the punishment thereof. The purported trial of the appellant was riddled with serious fundamental flaws in the absence of proper arraignment. As a consequence, the trial is vitiated ab-initio and rendered a nullity. Put differently, it is obvious that the trial, conviction and sentence of the appellant without an arraignment have vitiated the entire conviction and sentence with the total proceeding having been rendered null and void. Consequently, the very commencement of the criminal trial is hereby set aside. Having found and declared the entire trial in this case a nullity, I now hold a firm view that the other issues raised in this appeal would need no consideration in the absence of a valid trial and conviction. As a matter of fact, there is no valid appeal before us. It is at best purported. The court will be well advised not to engage in academic futility. The relevant question to pose at this juncture is, having declared the entire proceeding a nullity, what should be the appropriate order to make in the circumstance? The learned counsel for the appellant has urged this court to acquit and discharge his client in the face of the nullity trial conducted. For the appellant to be obliged the prayer sought by her counsel, it will be within reason to recapitulate carefully the nature and gravity of the allegation leveled against her. In other words, all the three head counts are very grievous as they are contrary to section 223 and punishable under section 221 (b) of the Penal Code. The nature of the offence is culpable homicide punishable with death. Suffice it to say that no trial has been conducted in this case at all. In the absence of same, another question to pose is, would it be in the interest of justice to concede to the submission by the counsel for the appellant for her discharge and an acquittal? The justice of this case will require the taking into account several interests groups which are: the accused/appellant, the victims and their family members as well as the security of the society whose perception of what constitutes justice should not be undermined. For consideration of whether or not to order a fresh trial in this matter, I will seek recourse in the decision of this court which had set down certain factors to be considered before a re-trial order can be made. Thus Uwais, CJN in the case of Yahaya V. State (2002) 3 NWLR (Pt. 754) P.289 enumerated the relevant factors as follows:- “(a) That there has been an error in law 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 court is unable to say 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 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; (e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it; and (f) That to enable the prosecution adduce evidence against the appellant which evidence may convict him when his success at the appeal is based on the absence of that same evidence.” The law is well established further that the foregoing factors must co-exist for a retrial to be ordered. See the view held in the case of Yusuf V. State (2011) 18 NWLR (Pt. 1279) P.853 at 878; Yerima V. State (2010) 14 NWLR (Pt. 1213) P.25 at 47 and Edibo V. State (2007) 13 NWLR (Pt. 1051) P.306 at 327. The trial in this case is vitiated on an account of total absence of arraignment which is the kick starting point of every criminal trial. In considering what consequential order to make in such a situation, the learned jurist Uwais, CJN drew a clear distinction between an order of “retrial” and an order for “a fresh trial.” In following the decision laid down in Erekanure V. State (1993) 5 NWLR (Pt. 294) 385 therefore his Lordship said as follows:- “A retrial is ordered only when, there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure. Where, however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not an order of retrial but of a fresh trial. In the instant case, there has been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial.” It is pertinent to restate positively that the trial of the appellant before us was not vitiated on the ground of error in law and/or irregularity in procedure; a retrial order cannot therefore be made in the circumstance. The proceeding as conducted was vitiated ab initio right from the foundation. The only way to right the wrong was to make an order for a proper trial. The distinction is very important in what consequential order is to be made. There has never been a trial in the case at hand as the purported trial had no legal force or effect. In my opinion and in view of the nature and gravity of the offence which is culpable homicide punishable with death, I will order a fresh trial of the appellant. In making the order, it is significant to highlight and re-iterate again that the charge against the appellant is serious wherein lives of three young victims were terminated. It would not therefore be proper in the prevailing circumstance for the appellant to be let off the hook without a proper trial. I will repeat again that justice should not be for the appellant alone, but the victim, the society and indeed the relations or family members of the victims. I hold the firm views therefore that an order for a fresh trial will serve the justice of this case. On the totality, I am of the considered opinion that this appeal should be allowed on the sole ground that the trial was a nullity ab initio. The appeal therefore succeeds and is hereby allowed. Consequently, I make an order setting aside the judgment of the lower court delivered on the 12th February, 2014 in appeal No. CA/K/289/C/2013 which affirmed that of the trial court in suit No. JDU/27C/2009 delivered on the 2/12/2010. A further order is also made that the case should be sent to the Chief Judge of Jigawa State for a fresh trial by another judge other than Ahmed Isah Sumel, J. Appeal is allowed and a fresh trial is ordered.

LER[2016]SC. 371/2014