The Supreme Court has affirmed the lower court judgment ordering a retrial of a man, Yahaya Ibrahim, convicted and sentenced to death for culpable homicide by a Kano State High Court.
The five-man panel of justices, in a unanimous judgment delivered by Justice Tijjani Abubakar, dismissed Yahaya’s appeal against the Appeal Court’s decision for lacking in merit.
The apex court held that the Appeal Court sitting in Kaduna was “right in so holding and ordering that the appellant be made to face a fresh trial to offer his plea since his plea was not taken on the amended charge.”
The panel therefore dismissed Yahaya’s appeal filed by his lawyer, Emmanuel Ekpenyong, seeking his discharge of the offences charged at the Kano State High Court, upon the appellate court’s judgement that he was not properly arraigned.
At the High Court, Yahaya was charged alongside eight other co-accused persons on a three-count charges of conspiracy, culpable homicide punishable with death and causing hurt.
The offence is said to be contrary to Sections 221(b), and 241 of the Penal Code (cap 105) laws of Kano State of Nigeria respectively.
In count two, Saidu Umar, Salmanu Haruna, Idris Umaru, Yahaya Ibrahim, Saleh Muazu, Umaru Abubakar, alias Mai Mota; Muazu Garba alias Kabel; Ath Sule Garba alias Alh Maza; Lawal lro, now at large, and Adamu Babare, now at large, male adults of Garin Babba Village, Garin Mallam Local Government Area of Kano State, were accused of committing the offences.
The State had alleged that the suspects, on or about Nov. 3, 2011, at Garin Babba Village, did commit culpable homicide punishable with death, in that they caused the death of Alhaji Sabo Jae by attacking him while he slept, with sticks and swords with the intention of causing his death.
The offence is said to be punishable under Section 221 of the Penal Code (Cap 105) Laws of Kano State of Nigeria, 1991.
They were also alleged to have, on or about Nov. 3, 2011, about same time, attacked and beat Idris Muhammad Jae as a result of which he sustained serious injuries.
The offence is said to be contrary to Section 241 (g) of the Penal Code Cap 105) Laws of Kano State of Nigeria, 1991.
At the trial, the prosecution called four witnesses who testified as PW-1 to PW-4 respectively, and tendered 10 exhibits.
On the part of Yahaya, 12 witnesses were called in his defence.
At the conclusion of trial, the trial judge, in a comprehensive judgment delivered on June 30, 2014 found the appellant and his other co-accused persons guilty and were accordingly convicted of the offences.
They were all sentenced to death under Section 221 of the Penal Code, and a period of one month for causing grievous hurt.
Dissatisfied with the judgment, Yahaya filed an appeal at the Court of Appeal, Kaduna Division.
The Court of Appeal on March 26, 2019, allowed Yahaya’s appeal and an order of retrial was made before another judge other than Justice Aliyu who tried and convicted him.
Aggrieved by the decision of the appellate court, Yahaya further appealed to the Supreme Court, through his lead counsel, Ekpenyong of the law firm of Fred-Young & Evans LP.
In his amended appellant’s brief of argument marked: SC/1052°/2019, and filed February 2025, the lawyer posed one issue for determination.
“Whether in the circumstances of this case, the learned justices of the Court of Appeal were right to make an order for a fresh trial of the appellant when the factors for the court to order a fresh trial do not co-exist in this case.”
Ekpenyong referred to the apex court’s decisions, in Hassan vs. FRN (2007) and Yahaya vs. State (2000), to submit that where a trial is declared a nullity by an appellate court, the court would either discharge the appellant or make an order of fresh trial.
He argued that the Appeal Court did not properly consider the factors in relation to the circumstances of the case as required before making an order for a fresh trial.
He submitted that the Appeal Court did not consider the interest of justice in the circumstance of the case and this, he argued, resulted in miscarriage of justice against his client.
According to him, the appellant and accused persons were arrested in November 2011, and kept in detention till April 25, 2013, when they were arraigned contrary to the provisions of Section 35 (4) (a) and (b) of the constitution which provides for arraignment of an accused person within a reasonable time.
Ekpenyong said the order for fresh trial after more than the reasonable period allowed by law would bring untold hardship on Yahaya.
He maintained that the decision of the lower court that Yahaya’s trial was a nullity maintained his presumption of innocence under the provisions of the constitution.
He observed that the prosecution alleged that the offences were committed by the appellant along with other co-accused persons.
The lawyer, however, argued that the balance of convenience is not in favour of a fresh trial considering the number of accused persons in the case who would also need to be tried together
He argued further that the evidence adduced against Yahaya by the prosecution was not only weak but almost non-existent.
He contended that from the records before the court, none of the prosecution witnesses saw Yahaya stab or do anything that led to the death of the deceased.
Besides, he said none of the defence witnesses implicated the appellant in the alleged offence of homicide to justify a fresh trial for the same offences against him.
He submitted that the confessional statement of his client tendered by PW4 and admitted by the trial court which formed the basis of his conviction by the trial court was of no probative value to the new judge that would conduct the fresh trial.
According to him, this is because the confessional statement was obtained under duress and oppression.
He said the alleged confessional statement of the appellant is purely hearsay and is inadmissible even in a fresh trial.
Ekpenyong relied on the decision of the apex court, in N.U.T Taraba vs. Habu (2018), to argue that the denial of fair hearing to a party was fatal to the judgement.
He, therefore, argued that the prosecution failed to lead evidence to show that it had further evidence against Yahaya which may result in a conviction of the appellant at the fresh trial.
The lawyer submitted that since the factors upon which the court might order a fresh trial did not co-exist in the case, “it is in the interest of justice to resolve this issue in favour of the appellant, allow this appeal, acquit and discharge the appellant.”
Moreover, the exhibit room where the exhibits in the case were kept had been burnt down by insurgents as such there is no evidence to even sustain the charges if an order of retrial Yahaya is affirmed by the Supreme Court.
But Kano State, in its argument by its counsel, Haruna Mohammed of the firm of H.M. Mohammed & Co., urged the court to dismiss the appeal and order the appellant to go for his retrial.
Mohammed submitted that the appellant, through his brief of argument, agreed with the appellate court that the court was right in holding that the failure of the trial judge to properly arraign him was a breach of the extant provisions of Section 36 (6) (a) of the 1999 Constitution (as amended), and Section 187 (1) of the Criminal Procedure Code Laws of Kano State (1991) respectively.
However, he argued that the court was clothed with the discretionary powers to order re-trial in a criminal appeal whenever the court finds the trial so conducted as a nullity on grounds of irregularity or noncompliance with the extant procedural laws.
Justice Tijjani Abubakar JSC, while delivering the lead judgement on May 23 and its certified true copy made available to newsmen on Monday, held that “from the decisions in the avalanche of cases, including those cited, it was beyond peradventure that the arraignment of the appellant at the trial court failed to satisfy the requirements of the law.
“In the end therefore, the appellant’s appeal is patently lacking in merit and therefore deserves to be and is hereby dismissed.
“The judgment of the lower court delivered on the 26th day of March, 2019, in appeal No CA/K/147E/C/2015 is affirmed.
“Appellant is hereby ordered to march to the trial court to face his retrial,” the judge said. (NAN)
