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CRIME

’When Trial Within Trial Begins, Main Trial Is Suspended’

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The Facts

Saiisu Lawal, PW3 lives with his wife Hadiza Ibrahim, PW4 in Nasarawa Central in Daura. On Thursday July 22, 2004 at about 3 a.m. he was asleep with his wife at home. They woke up when they heard some persons who turned out to be robbers opening the door of their room. Five persons eventually entered the room armed with Knives, sticks, gun and a sword. They searched for valuables and carted away VCD, Video, Iron, Radio N100,000 and proceeded to PW4s room where they stole two Bundles of wrappers, lace, shoes, two bottles of perfume and left without harming anyone. They spent about two hours ransacking PW3’s home. They made their escape thereafter. The appellant was not arrested at the scene of the crime neither were any of the robbers. The 2nd accused appellant was arrested after the 1st accused person implicated him as one of the armed robbers. The appellant made a confessional statement. On these facts the appellant and the 15t accused person were charge for armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms Act. The other nocturnal robbers were never arrested except the 1st and 2nd accused persons.

The respondent as the “2nd accused person was arraigned before a Katsina State High Court on two counts and  entered not guilty pleas to both counts.

In proof of its case the prosecution called its first Witness on 27 July 2005 and ended up calling live witnesses. The appellant gave evidence in his defence but did not call ant witness. A trial within trial was conducted but a strange procedure was adopted by the learned trial judge. This procedure would he addressed later on in this judgment. In a ruling delivered on the trial within trial the appellant’s statements were admitted as exhibit F and F1.

Aside from exhibits F and F1, exhibit A, stick, exhibit B, sword, exhibit C, stick and exhibit D hoe handle, exhibit E and E1 statements of 1st accused person were tendered, [but none of these exhibits were linked to the appellant.

In a considered judgement the learned trial judge sentenced the respondent and his co-accused to death.

Dissatisfied with the judgment of the trial court, the respondent filed an appeal. It was heard by the Court of Appeal (Kaduna Division). That court in a judgment delivered on 22 December, 2010 upset the judgment of the trial court.

This appeal is against that judgment. Briefs were filed and exchanged by counsel. An amended appellant’s brief was filed on ‘23 October (2017, but deemed properly filed and served on ‘26, October 2017.

”An amended respondent’s brief was filed on 25 July 2017 but deemed properly filed and served on 26, October 2017.

ISSUES FOR DETERMINATION

ISSUE 1 Whether the learned Honourable Justices of the Court of Appeal, were right when they held that they had the powers to reformulate, and indeed, reformulated the detective issues for determination set before them by the appellant, at the court below.

ISSUE 2 Whether the learned Honourable Justices were right when they held that the judgment of the High Court was not supported by evidence, when the record of proceeding showed otherwise.

ISSUE3 Whether the Honourable Justices of the Court of Appeal were right when they held that the process/procedure adopted by the trial judge compromised the respondent’s right to fair hearing.

ARGUMENT

Learned counsel for the appellant observed that in the conduct of any trial, the parties are to handle and prosecute their matter as they deem fit, and not the duty of the judge to take over the job of either party. He submitted that by reformulating the issues for determination the Court of Appeal took over counsel job and handled it for them. Relying on USO v Police (1972)11SC p.37.   Oceanic Bank Int (Nig) Ltd v Chitex Ind Ltd (2006) 6NWLR (Pt.661) p.494

He submitted that this court should hold that the Court of Appeal was wrong to reformulate the defective issues for determination in the respondent‘s (appellant in Court of Appeal) brief, contending that the brief ought to have been struck out.

JUDGEMENT

It must be abundantly clear that an appeal court has discretion to reformulate issues for determination by both sides in the interest of justice. Where as in this case there is a complaint that the Court of Appeal by reformulating issues has taken over the duty of counsel and handled the case for them, the burden lies on the party complaining to show that fresh issues do not better address the real grievance in the appeal and is not geared towards achieving substantial justice. Issue one is easily resolved against the appellant since learned counsel for the appellant never discharged the burden in his brief.

By no stretch of imagination does the reformulation of issues by the judge amount to the judge taking over the job of counsel, rather it is the duty of the judge at all times to seek substantial justice and this can only he achieved if issues that address the real grievance in the appeal are considered by the court. In this way an appeal would be determined correctly and the justice system would he highly commended rather than derided.

The respondent and B. Gambo were tried by a Katisna State High Court on a two count charge of armed robbery punishable with death, contrary to section 1(2) (a) of the Robbery and Firearms Act. He was accused of being one of the five armed robbers that raided the home of PW3 and PW4 and carted away their belongings. Both victims of the armed robbery did not identify the respondent as one of the armed robbers and no evidence connecting the respondent with the armed robbery except a statement allegedly made by him confessing that he was one of the armed robbers.

After a mini trial was conducted the learned trial judge was satisfied that the confession was free and voluntary and convicted the appellant on it.

If ever there was an armed robbery case that needs an identification parade to be conducted to identity who actually were the armed robbers on the night of July 22, 2004 at the home of PW3 and PW4, this is it. Nobody has come to this court to say that the appellant was among the armed robbers that robbed PW3 and PW4. The two victims of the armed robbery, PW3 and PW4 never said that the appellant was one of the armed robbers, but they positively identified the 1st accused person as one of the armed robbers. There was definitely a robbery at the home of PW3 and PW4 on 22 July, 2004. The robbery appears to have been carried out with offensive weapons, there is no direct oral evidence by or from the victims of the robbery (ie. PW3 and PW4) that the appellant participated as one of the armed robbers. The offence of armed robbery punishable under section 1(2) (a) of the Robbery and Firearms Act was not proved beyond reasonable doubt since the identity of the appellant as one of the robbers was not established by the testimony of PW3 and PW4.

A trial judge must be very sure that the accused person standing in the clock is indeed the armed robber, and so must be extra careful when examining evidence of the prosecution and defence especially on the issue of the identity of the accused person. The accused person must properly identified before a conviction is sustained on appeal. An accused person should always be entitled to the benefit of doubt.

I must seriously comment on the conduct of a trial within trial (mini trial). Babangicla Gambo the 1st accused person and the appellant were charged on two counts of armed robbery. On 27 July 2005 Cpl Abu Musa gave evidence as PWI. The confessional statement of the 1st accused person was to be tendered through him when counsel for the 1st accused person objected on the ground that the statement was made after threat and intimidation. Mr. Sabi’u counsel for the prosecution applied for trial within trial. The learned trial judge ordered that trial within trial will be conducted on the next adjourned date.

Mr. Sabi’u -I will stop this witness until the trial within trial is conducted then he will conclude his testimony.

The Court stopped hearing testimony from PW 1 and started hearing testimony from PW2. PW2 concluded his testimony on 27 July 2005 and further hearing was adjourned to 26 September 2005 and again to 19 October 2005 with no evidence taken.

On 19 October 2005 PW3 gave evidence. The trial was adjourned to 7 November 2005 for continuation of hearing in trial within trial; (it must be noted that trial within trial had not commenced).

The first witness in the trial within trial gave evidence on 7 November 2005. He was Cpl Abu Musa, who gave evidence as P W1. He gave evidence in the trial within trial as PWA. After he gave evidence PWB, DSP Adamu A. Chibok also gave evidence on 7 November 2005 and concluded on the same day. The case was adjourned to 1st December 2005 for continuation of hearing. PW4 then testified and concluded his evidence. Thereafter the case dragged on beset with several adjournments clue to absence of witnesses, absence of accused persons and or counsel.

There were adjournments from 19 January 2006 to 14 February 2006, to 21 March 2006, to 17 April 2006, to 10 May 2006 and to 5 June 2006, to 10 July 2006, 27 September 2006, 4 October 2006, 18 October 2006 and then to 22 November 2006 when PW5 was taken. It was he who took the statement of the appellant.

In an attempt to tender the appellant’s statement there was objection from appellant counsel that the statement was obtained under duress.

Mr. Sabi’u applied for trial within trial to determine the voluntariness or otherwise. He applied and was granted permission to take PW5 as first witness for trial within trial. PW5 gave evidence as PWA, PWB was then called on 18 December 2006. After he concluded evidence further hearing was adjourned to 27 December 2006. On that day Mr. Sabi’u informed the court that he had called all his witnesses in the trial within trial and that he had only one witness to call in the main trial. The learned trial judge ordered the detence to open defence in trial within trial. The 1st accused person gave evidence as DWA. DWB (ie the appellant gave evidence) DWC and DWD also gave evidence. At the end the learned trial judge ordered that the testimony of DWA DWB, DWC and DWD he and is hereby adopted as the testimony of DWI, DW2, DW3 and DW4. Then DW4 was taken (see page 73) after DW4 concluded her testimony this is what transpired.

The sole purpose of a trial within the main trial is to test whether the confessional statement to be tendered by the prosecution was made voluntarily by the accused person or whether he was forced or induced to make it. Once a trial within trial is ordered by the trial judge the main trial is suspended until the conclusion of the trial within trial.

The trial within trial commences with the state calling witnesses, usually police officers who would be examined under oath by the state and cross-examined by the defence. The witnesses for the state are to satisfy the court that the accused person made the confessional statement voluntarily while the defence counsel is to show the contrary i.e. that the accused person was forced or induced to make the statement.

After the state concludes its evidence the accused person goes into the witness box to explain to the court how he was forced, or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence.

I have reproduced extracts from proceedings in the trial court on the mini trial. It is so clear that the learned trial judge made no attempt to follow well laid down procedure in conducting the trial within trial.

It was wrong for proceedings in the trial within trial and the main trial to be taken together, and allowing the accused person no time whatsoever after the Ruling on the trial within trial was delivered before delivering of judgment in the main trial. Such a procedure is unknown to criminal procedure and prejudicial to the accused person even if his counsel consents to such strange procedure, The overall interest of justice is clearly in question. Lumping the trial within trial with the main trial clearly compromised the respondent’s right to a fair hearing as he was denied the opportunity after the Ruling to decide how to go about his defence before judgment was delivered. The accused person should not he denied that right even if his counsel acquiesced to this irregular procedure. This is premised on the position of the law that fair hearing in a criminal trial cannot be waived.

It must never be forgotten that this is a criminal trial that carries the death penalty. Substantial justice must be seen to be done. Reliance on technicalities would definitely lead to injustice.

An accused person must always be given the benefit of the doubt when there are blunders in the case of the prosecution. None compliance with well laid down procedure would never result in the court achieving substantial justice.

We are not satisfied with the procedure adopted by the learned trial judge in the conduct of the trial within trial. The trial within trial is accordingly declared a nullity. Exhibits F and F1 which were admitted in evidence in the trial within trial were wrongly admitted as the procedure adopted was wrong. Alter considering all the arguments we think that the Court of Appeal could have come to no other conclusion, and that the appeal must be dismissed.

This appeal is hereby dismissed. The judgment 0f the Court of Appeal is affirmed. This in effect means that the appellant is acquitted on both counts and discharged from court.

Olabode Rhodes-Vivour, JSC

Representations:

B. Nwaokenye, with him F. Bissong for the Appellant                                  





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