NWLR This Week: Legality of Trial in Absentia- Principles and Exceptions

Parties:     Dingi Mohammed v. State

Appeal No: SC/403/2015

Court:         Supreme Court

Justices: IBRAHIM TANKO MUHAMMAD, J.S.C. (Presided)
MARY UKAEGO PETER-ODILI J.S.C.
OLUKAYODE ARIWOOLA, J.S.C. (Read the Leading Ruling)
KUMAI BAYANG AKA’ AHS, J .S.C.
AMINA ADAMU AUGIE, J.S.C.

Citation:       (2018) 5 NWLR (Pt. 1613) P.540

Facts:  

The appellant and three others, including one Ahmadu M. Dikko, were charged before the trial court for conspiracy and homicide punishable with death. The appellant was the 3^rd accused in respect of only count 2, as he was not charged on count 1. Ahmadu Dikko who was the 2^nd accused was said to be at large, having absconded from the hospital where he was being treated.

On 18^th June 2007 the Director of Public Prosecution informed the trial court of the escape of the 2^nd accused – Ahmadu Dikko from the Minna General Hospital and therefore prayed the court, pursuant to section 259 (1) of the Criminal Procedure Code, to stay proceedings against the 2^nd accused, pending his re-arrest and re-arraignment. The said application was granted and the case proceeded to trial and the other accused, persons took their plea to the original charge.

On 26^th July 2007, the charge was amended by the prosecution and the accused again pleaded to the amended charge. The case proceeded to hearing. The prosecution called eight (8) witnesses and tendered some exhibits. Each of the accused persons testified in his respective defence but called no other witness. In its judgment, the trial court found the appellant not guilty of the offence of conspiracy under section 97 (1) of the Penal Code as contained in count 2 of the charge. He was accordingly discharged and acquitted of the said count. He was however found guilty of the offence of culpable homicide not punishable with death under section 224 of the Penal Code and he was sentenced to 15 years imprisonment.

Dissatisfied with the judgment the appellant appealed to the Court of Appeal which dismissed the appeal and affirmed the conviction and sentence of the appellant by the trial court. Still dissatisfied, the appellant further appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered the provision of Section

259 (1) of the Criminal Procedure Code which states as follows:-

“259(1) The court at any stage of the trial where there are several accused may by order in writing stating the reasons therefor stay the proceedings of the joint trial and may continue the proceedings against each or any of the accused separately.”

Principle:     

1. On Legality of trial in absentia

Trial in absentia is a procedure unknown to Nigeria procedural law. It is obviously a negation of fair trial. A trial of the accused person in his absence is a sham. In the instant case, the appellant was not tried with the 2^nd accused who was said to have absconded. Hence there was no breach of section 259 (1) of the Criminal Procedure Code as contended by the appellant. The trial was properly conducted without the 2^nd accused and it was not a nullity. [Chief of Air Staff V. lyen (2005) 6 NWLR (Pt. 922) 496; Ochu v. F.R. N. (2011) All FWLR (Pt. 563) 2008 referred to.] (P. 572, paras.^C-F)

2. On Right of accused person standing trial to be present in court throughout trial and exceptions thereto –

It is a fundamental principle of fair hearing that an accused person standing trial for a criminal offence has to be present in court throughout the period of his trial and a violation of it renders the trial a nullity. The only known exceptions are where the accused misconducts himself at the trial or is of unsound mind and so incapable of making his defence. [State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 referred to.] (P. 573, paras.^C-E)

3. On Right of accused person standing trial to be present in court throughout trial and exceptions thereto –

It is an essential principle of Criminal Law and Procedure in Nigeria that the trial of an accused person for an offence has to be conducted in the presence of the accused and for such purpose, trial means the whole of the proceedings including the judgment and sentence. The only exception is where the violent tendencies of an accused person may necessitate the keeping him out of court in the interest of public safety for peaceful conduct of the trial. . [State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 referred to.] (P. 573, paras.^F-G)

4. On Right of accused person standing trial to be present in court throughout trial and exceptions thereto –

In the case of State v. Lawal only two of the accused persons were absent on the date when counsel delivered their final addresses and on the date of judgment. The Supreme Court had held that by virtue of their absence at those occasions, the whole of the proceedings and judgment were a nullity and the accused persons who were present had right to challenge the judgment by way of judicial review so the proceedings could be quashed. In the instant case, the 2^nd accused was charged together with the three others at the trial court but the 2^nd accused who was receiving treatment in the hospital was later reported to be at large which left the court without any other option than to grant an order staying proceedings against the 2^nd accused. The 2^nd accused was thereafter at no point after the grant of the stay of proceedings included in the trial that led to the conviction of the appellant. The appellant, between the time of the stay and the further hearing but before the judgment, had an opportunity to raise objection to the stay of proceedings granted. He failed to complain that an irregularity had occurred and that failure has foreclosed this complaint after the judgment at the trial court. Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; State v. Lawal (2013) 7 NWLR (Pt. 1354) 565 referred to.] (Pp. 573-574, paras.^G-B)

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