Samaila Umaru V. The State (2008)
LawGlobal-Hub Lead Judgment Report
ABDU ABOKI, J.C.A.
This is an Appeal against the decision of Idris M. J. Evuli J. of the Niger State High Court of Justice, Kontagora delivered on 26/6/2004. The Appellant and two other accused persons were arraigned before the High Court on a three-count charge of Conspiracy, Robbery and Culpable Homicide.
The Appellant and his other co-accused persons were found guilty, convicted and sentenced to various terms of punishment. The Appellant was sentenced to 5 years imprisonment on the 1st court, 10 years imprisonment on the 2nd count and 15 years on the 3rd count and the sentences were to run concurrently.
It is against this conviction and sentence that the Appellant appealed to this Court.
The Appellant’s brief dated 31/1/2006 was filed on 31/1/2006 while the Respondent’s brief of argument dated 15/6/2006 was deemed filed on 19/6/2006.
After parties have exchanged their briefs of argument, the Appellant filed reply brief dated 27/6/2006 but filed on 30/6/2006.
The Appellant formulated five issues for the determination of this Appeal, thus:
“1. Whether the erroneous conclusion of the Hon. Judge that the Appellant never denied the committal of all the 3 counts charge made against him, did not occasion a miscarriage of justice.
2. Whether the offence of culpable homicide was proved against the Appellant.
3. Whether the Hon. Trial court was right to have relied on or considered the purported conclusion or the plea of guilt in convicting the Appellant.
4. Whether in the circumstances of this case the Appellant could be said to have had a fair hearing.
5. Whether having regard to the totality of evidence before the court, the Hon. Trial Court was right to have returned verdict of guilt against the Appellant on the three counts.”
The Respondent on its part distilled four issues for determination in this Appeal:
“1. Whether the evidence adduced at the trial court is sufficient to justify the conviction and sentence of the Appellant.
2. Whether the offences of culpable homicide was proved against the Appellant.
3. Whether the non-appearance of the Appellant’s counsel at the defence stage, consequent upon which Appellant testified without counsel’s aid, affect the Appellant’s right to fair and adequate representation by counsel of his choice.
4. Whether the trial court discretion in (sic) sentencing the Appellant for the offence of culpable homicide punishable with death was exercised in accordance with law.”
It is very clear from the issues formulated by the parties two issues stood out conspicuously in both briefs of argument. These issues relate to the proof of the three offences the Appellant was charged with and the question of whether he was accorded fair hearing by the trial court.
I am of the opinion that issues 4 and 5 as formulated by the Appellant are all encompassing and capable of subsuming the remaining issues, as well as accommodated the issues distilled by the Respondent.
These issues are again reproduced for case of reference:
“1. Whether in the circumstances of this case the Appellant could be said to have had a fair hearing.
2. Whether having regard to the totality of evidence before the court, the Hon. Trial court was right to have returned verdict of guilt against the Appellant on the three counts.”
I adopt these issues for determination in this appeal and I will confine myself to these issues only.
On the first issue, learned Counsel for the Appellant submitted that for the trial Court to have asked the Appellant to enter his defence and give evidence without his lawyer in a criminal trial is a violation of the Appellant’s constitutionally secured freedom of fair hearing.
Learned Counsel argued that it was wrong for the prosecution to have urged the trial Court to force the Appellant to give evidence in the absence of his lawyer. Learned Counsel referred the Court to the proceedings of 1/6/04 at page 49 of the Record.
Learned Counsel contended that the right to be heard includes the right to be represented in criminal trial until Judgment. He referred the Court to the case of State v. Onagoruwa (1992) 2 NWLR Pt. 221 page 33 at 38.
Learned Counsel argued then the Appellant was coerced into entering his defence unrepresented by a Counsel. He referred the Court to the cases of: Klim v. The State (1992) 4 NW LR Pt. 233 page 17 at 20:
Unongo v. Aper Aku (1983) 11 SC 129 at 153.
Mr. Chukwuma-Machukwu Ume Counsel for the Appellant maintained that the trial court ought to have, in the interest of justice, granted the Appellant at least one more adjournment to reconsider his stance and see whether his Counsel will be in Court. He cited the case of Magistrate Court, ex – P. Polemis (1974) 1 WLR 1371 at 1375.
Learned Counsel stated that the Appellant gave evidence and was there and then cross-examined without the assistance of a Counsel. He urged the Court to quash the conviction of the Appellant and to discharge and acquit him having been denied fair hearing.
Mallam Mu’azu Shehu, learned Counsel for the Respondent, referred the Court to Section 36(6)(c) of the 1999 Constitution and Section 186 of the Criminal Procedure Code and contended that the term hearing and fair trial are synonymous and mean the same thing. He argued that fair hearing in relation to a case means that the trial of the case or the conduct of the proceedings is in accordance with the relevant law and rule for ensuring justice and fairness. He referred the court to the cases of:
State v. Onagoruwa (supra);
Muhammed v. Kano N. A. (1968) 1 All NLR 422.
Mallam Mu’azu Shehu maintained that the true test of a fair hearing is the impression that a reasonable person who was present at the trial would have, whether from his observation, justice has been done. He cited the case of Klim v. The State (supra).
Learned Counsel argued that the intent of Section 33(6)(c) of the 1999 Constitution is to make the choice of counsel as of right only in criminal cases. He maintained that Section 186 of the Criminal Procedure Code makes it mandatory upon the court to provide legal services for an accused charged with capital offence and who cannot afford the cost of engaging a legal practitioner.
Learned Counsel contended that the breach of the right to fair hearing must be considered in the light of the facts and circumstances of the case.
Learned Counsel reproduced the proceedings of 14/4/2004, 4/5/2004 and 1/6/2004 contained on pages 49 – 50 of the Record.
Mallam Mu’azu Shehu insisted that there is enough compliance with the provisions of section 186 of the Criminal Procedure Code. He argued that right from the commencement of hearing of witnesses against the Appellant and the other co-accused persons, they had the benefit of Counsel assigned to them by the Court for their defence and that they were represented by a Counsel throughout the trial, save for the proceedings of the 1/6/2004; when the Appellant volunteered his defence without the aid of a Counsel.
Learned Counsel contended that having regard to the totality of the evidence before the trial Court, that it is not reasonably probable that a result more favourable to the Appellant would have been reached in the absence of his Counsel. He insisted that even if a Counsel leads the Appellant in evidence that will not change the quality of the evidence already before the Court.
Learned Counsel for the Respondent argued that where a Counsel for an accused person fails to appear through his own default or fails to ask a colleague to hold his brief, the trial Court may continue without him. He referred the Court to the cases of
Yanor and Another v. State (1965) All NLR 199;
Benjamin Shamfe v. CO.P. (1962) NWLR 83.
Learned Counsel maintained that although the Appellant had to take charge of his own defence he had not been deprived by the Court of his opportunity to have a legal representative, because the lack of assistance was occasioned by Counsel himself. Learned Counsel insisted that the Court properly proceeded with the trial in view of the fact that Counsel’s absence was unexplained and unjustified. He argued that the failure of the trial court, to make inquires about the counsel’s absence on 1/6/2004 and to grant the Appellant one more adjournment to allow him access to Counsel are matters within the exclusive preserve of the trial Court’s discretion, which does not occasion any miscarriage of justice. Learned Counsel for the Respondent maintained that based on facts and circumstance of the case, that the Appellant’s right to fair and adequate representation by Counsel of his choice was never breached by the Court. He urged the Court to dismiss the Appeal.
The Constitution of the Federal Republic of Nigeria 1999 has made adequate provision guaranteeing to all citizens of this country a right to fair hearing whenever they are accused of committing a criminal offence.
“Section 36(6): Every person who is charged with a criminal offence shall be entitled to:
(a) …..
….
(b) ……
……..
(c) defend himself in person or by, legal practitioners of his own choice.”
The right to fair hearing enshrined in the 1999 Constitution under Section 36 includes the right of an accused person to defend himself in person or by a legal practitioner.
Fair hearing is an essential requirement for a just determination of disputes between parties. A matter is in the process of being heard from its commencement tip to and including the delivery of Judgment. See Akoh v. Abuh (1988) NWLR Pt.85 page 696; Yabugbe v. C.O.P. (1992) 4 NWLR Pt.234 page 152.
Fair hearing is the hearing, consideration and decision of a matter according to all the rule of justice.
Fairness and due process of law are enshrined in the Constitution and in the Laws of the land to ensure justice and prevent miscarriage or failure of justice.
Stressing the importance of the right to fair hearing, the Supreme Court said in the case of Olatunbosun v. NISER (1988) 3 NWLR Pt. 80 page 25 at 47, per Oputa JSC:
“The right of a man to be heard in his own defence is the most elementary protection of all.”
Fair hearing lies in the procedure adopted by the Court on the determination of the case, and not in the correctness of decision. See The State v. Onagoruwa (1992) 2 NWLR Pt. 221 page 33 at 38.
In the present case, the Appellant stood trial for the offences of Conspiracy, Robbery, and Culpable Homicide contrary to Sections 97, 298 and 221 of the Penal Code. The offence of Culpable Homicide under Section 221 of the Penal Code on conviction carries a death penalty and therefore is a capital offence.
Section 186 of the Criminal Procedure Code States:
“Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner the court shall assign a legal practitioner for his defence.”
The Appellant was represented by a Counsel Mr. F. O. Johnson who was in Court on 4/5/2004, took adjournment to 1/6/2004 fixed for the defence. However on 1/6/2004 he was absent in court.
The record of proceedings of the trial Court of 1/6/2004 at page 21 of the record of Appeal is hereby reproduced for case of reference:
“1ST DAY OF JUNE, 2004
NSHC/KG/1C/2002
THE STATE
V.
1. HUSSAINI SAMAILA
2. EMMANUEL OCHE
3. SAMAILA UMARU
1st accused present speaks Hausa.
2nd accused present speaks English.
3rd accused present speaks Hausa.
Gambo Abubakar interprets from English to Hausa vice versa. Mr. Adamu Panti Mohammed, Principal State Counsel for the State.
Prosecutor – The accused persons are in Court. They stand trial for conspiracy, robbery and culpable homicide contrary to Section 97, 298 and 221 of the Penal Code. The case is for defence.
Court – Each suspect is asked whether he can enter into his defence, in the absence of their Counsel.
2nd accused – I want to enter into my defence.
3rd accused – I will defend myself.
Court – Call the 2nd accused to enter his defence.
EVIDENCE OF THE 2ND ACCUSED PERSON:
Christian, affirmed speaks English States:-
My name is Emmanuel Oche. I live at M. r. D. Police Barracks Katangora. I am 23yean old. I am an applicant. I know the 1st as well as the 3rd accused.
…….
Cross Examination by the Prosecutor:
………………
(SGD)
JUDGE
1/6/2004″
DW2-EVIDENCE OF THE 3RD ACCUSED
Muslim, affirmed, speaks Hausa, states:
My name is Samaila Umaru, I live at Unguwar Nasarawa Kontagora. I am a driver. I know the 1st accused as well as the 2nd accused. I know of the charge against me. I had known the 1st accused for the past six months then. On a fateful date at about 7:00 p.m. The 1st accused and 2nd accused came to my house that they had a machine. The 1st accused conveyed us on motorcycle. We went to Oga Lati. I asked Oga Lati if he was interested in buying a motorcycle he said no. I told them that Lati was not willing to buy a machine. Back to Nassarawa I collected my machine and they went away. Since I have never set my eyes on them again. I traveled and on my return my wife told me that police were looking for me. I was at home and later left for Mall. Ibrahim’s house and back to my house again and was arrested. The 1st accused identified me to the police. The 1st accused told the police that we stole a machine together. I was tortured by the police I made statement to the Police, we were later refer to the State C.I.D.
Cross Examination by the Prosecutor – I was born in Zamfara. I was brought up here in Kontagora. I am about 17 years old in Kontagora. The 1st accused lives at Yanuna. The 1st accused rides a machine (kabu kabu). I know the 1st accused because of his senior brother. The 1st accused used to visit me in my house.
I know the 2nd accused through the 1st accused. I know him the very day. The others who were arrested were discharged by the police. Three of us were arraigned. I know Oga Lati when I was a driver. I know he buys motorcycle. The 1st and 2nd accuseds came to my house that they had a machine for sale. I had not seen the motorcycle then I met Oga Lati personally. If he is willing to buy, the 1st and 2nd accused were to bring the machine. It is not proper to sell what is not in one’s possession.
I made a statement at the police to the C.I.D. in Minna, in the presence of the 1st and 2nd accused. Each one of us made a statement to the police. I was present when the 1st and 2nd suspects made statement to the police.
(SOD)
(HON. JUSTICE IDRIS M. J. EVUTI)
JUDGE
1/6/2004”
The 3rd accused who gave evidence as DW2 is the Appellant. He testified and was cross-examined in the absence of his Counsel. I am not unmindful of the decision that where Counsel for an accused person fails to appear through his own default the trial may continue without him. See:
Benjamin Shamfe v. Commissioner of Police (1962) NRNLR 87;
Ortese Yanor & Anor v. The State (1965) 1 All NLR 193.
However in Bawa Jibril v. The State (1968) NMLR 71, the Supreme Court held that the calling of a medical evidence as to the age of the convict in the absence of his Counsel was irregular. See Ibrahim Dimu v. Commissioner (1962) NRNLR 42 at 45.
In the present case, the learned trial Judge should have adjourned the matter to allow for the attendance of Counsel for the Accused/Appellant. Allowing the Accused/appellant to enter his defence has deprived him of an advantage which the law extends to every accused person, to have his ease properly presented by a Counsel. The Appellant has clearly suffered a disadvantage which has been aggravated by his ignorance and act of overreaching of the prosecution.
An Accused person even if he is literate, stands to benefit from the assistance of Counsel at a Criminal trial. Criminal Law and Procedure are not easily understood by the untrained.
Matters such as whether an accused should take the witness stand, what evidence is admissible or not and cross-examination of prosecution witnesses call for trained judgment of a Counsel.
Fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 entails doing during the course of trial all things which will make an impartial observer leaving the Court room to believe that the trial had been balanced and fair to both parties to the trial. See Klim v. The State (1992) 4 NWLR Pt. 233 page 17 at 20.
The essence of fair hearing enshrined in the Constitution of the Federal Republic of Nigeria 1999 and Laws of this Country to a person standing trial for a capital offence is that in view of the seriousness of the charge in such cases, the trial should not be weighed against an accused person who, not being a legal practitioner does not understand or appreciate the language, procedure and technicalities of the Court and is therefore in a definite disadvantage if he is made or allowed to conduct his case against a legally qualified person. See Udu v. The State (1988) 1 NSCC 1163 at1172.
In the present case, when the Appellant testified in his defence and was cross-examined by the prosecution, his Counsel was not in Court and no words were sent to explain his absence. The learned trial Judge did not ask the Appellant about the where about of his Counselor the reasons for the failure of the Appellant’s Counsel to be in Court on that day. When the learned trial Judge asked the Appellant whether he can enter his defence in the absence of his Counsel and he said yes, the Accused/Appellant should have been reminded that his constitutional right to a Counsel has not been extinguished and whether he still wants to take advantage or/he said right, considering the fact that the Appellant was standing trial for a capital offence and he was to enter into a defence of his life.
The learned trial Judge should have asked whether the Appellant wants an adjournment or should have granted an adjournment even if he had not requested for it so as to allow his Counsel to attend Court and assist him in his defence.
The Appellant having not been informed of his constitutional right to a Counsel before he entered his defence without the assistance of a Counsel, the Appellant was certainly deprived of an advantage which the Constitution extends to every accused person, to have his case properly presented by a Counsel. The Appellant in my opinion has suffered a disadvantage which has been aggravated by ignorance.
A community reading of Section 36(6)(c ) of the Constitution and Section 186 of the Criminal Procedure Code is that when the Counsel briefed or assigned to an accused person facing a capital offence is absent, the Court hearing the matter has no alternative but to grant an adjournment to the accused to enable the Counsel attend or for the accused to brief or be assigned another Counsel who must have sufficient time to prepare for the defence of the accused. See Dixon Gokpa v. Inspector-General of Police (1961) All NLR 423; Udo v. The State (supra) page 1170.
“It is the duty of the Counsel briefed or assigned to assist an accused facing a capital trial to give utmost priority to the case against all other commitments. He is not entitled to hold the Court to ransom by his absence or irregular attendance. The Law does not give any special privileges to such a Counsel, the right is that of the accused.
In the present case, it seems the learned trial Judge has failed to hold the judicial balance between the Appellant and the prosecution evenly and this has resulted in a miscarriage of justice.
The 1st issue in this Appeal is resolved in favour of the Appellant. There will be no need to consider the other issue since this issue has disposed of the appeal.
This is not the end of the matter. In considering what final order to make and in view of the fact that the charge against the Appellant before the trial Court is a grave one, I took a second look at the quality of the evidence presented before the trial Court to see whether this is a proper case to apply the principles in R. v. Abodundu & Ors. (1959) 4 FSC 70 at 73-74 and order a retrial. The principles on the said case have been summarized as follows:
(a) that the trial was not a nullity but contains such irregularities in procedure so serious that this Court cannot say there has been no miscarriage of justice;
(b) that the evidence taken as a whole discloses a substantial case against the appellant;
(c) that there are no special circumstances as would make a retrial oppressive;
(d) that the offence charged is a grave one; and
(e) that to refuse a retrial will occasion a greater injustice than to grant it.
All these circumstances must co-exist before an order for retrial can be made.
The Supreme Court enumerated other principles to be considered before ordering a retrial in the case of Okoduwa & Ors. v. The State (1988) 1 NSCC 718 at 728, per Nnamani JSC:
“…an order for retrial must depend on the circumstances of the particular case, matters to be considered include, the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone for a second time by the prisoner, the lapse of time since the commission of the offence and its effect on the quality of evidence and the nature of the first trial, whether substantial or not. See Ankwa v. State (1969) 1 All NLR 133; Okafor v. State (1976) 5 SC 13: Okegbu v. State (1979) 11 SC 1.”
In the present case, the charges against the Appellant are indeed grave, conspiracy, robbery and culpable homicide contrary to Sections 97, 298 and 221 of the Penal Code respectively. The penalty for Culpable homicide under Section 221 of the Penal Code is death by hanging. From the evidence present before the trial Court as contained in the Record of Appeal, the Appellant took a very active part in the commission of all the offences, which he was charged along with others.
The conspiracy to commit the robbery was hatched in his house. He was alleged to tie the hands and legs of the deceased, dragged and pushed the deceased into a pond, where he died and his body was later recovered.
The Appellant remained behind at the scene of the crime probably to ensure that the victim was dead, while the other accused persons rode away on the Suzuki Motor-cycle they rubbed the deceased of. When the other accused persons were arrested by the Police while on their way to Yauri to sell the Motor-cycle they all named the Appellant as their co-conspirator.
Robbery with violence is as a matter of common knowledge prevalent in our society and indeed has become a scourge which must be attacked at every turn. I am not unmindful of the fact that the Appellant has been in custody since the Year 2001 a period of about seven years. However having regard to the severity of the ultimate penalty should he be found guilty in retrial, I do not consider that such a retrial would be oppressive.
As to whether the case against the Appellant is substantial to justify a retrial, I can say that from the evidence contained on the Record of Appeal there is a prima facie case against the Appellant as disclosed in the earlier trial.
This appeal succeeds and is allowed. The Judgment of the Niger State High Court of Justice sitting at Kontagora is hereby set aside, but it is ordered that the Appellant be arraigned for retrial.
The Chief Judge of Niger State is ordered to assign the case to another Judge of the High Court of Justice Niger State and the case should be given in accelerated hearing.
Other Citations: (2008)LCN/2627(CA)
