GARUBA MAMMAN V. THE STATE (2018)

Background

Garuba Mamman and Mohammed Bello were prosecuted before the High Court of Kwara State in respect of an alleged attack on Abiodun Fulani at Gariola village along Oke-Ose on or about 26 June 2013. The prosecution alleged that the accused persons conspired to rob the victim of N50,000 and, in the course of the robbery, assaulted him with a stick and cutlass, causing an injury to his head. They were charged with conspiracy and armed robbery under sections 6(b) and 2(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

Both accused persons pleaded not guilty. The prosecution called three witnesses, including the alleged victim, while the accused persons testified in their defence. Following the adoption of final addresses, the trial court adjourned the matter for judgment. On 27 July 2015, the High Court convicted both accused persons and sentenced them to death by hanging. The record, however, did not indicate that the appellant was present when judgment and sentence were delivered. It also did not show that he was invited to make an allocutus, or plea in mitigation, before sentence was imposed.

The appellant appealed to the Court of Appeal on six grounds, from which three principal issues were distilled. The central issue was whether the failure of the trial court to ensure and record the appellant’s presence during judgment and sentencing violated sections 153 and 154 of the Criminal Procedure Code and rendered the conviction and sentence a nullity.

Issues

1. Whether the conviction and sentence of the appellant in his absence contravened sections 153 and 154 of the Criminal Procedure Code and thereby invalidated the proceedings.
2. Whether the alleged identification of the appellant at the police station amounted to a legally recognised identification parade.
3. Whether the prosecution proved the offences of conspiracy and armed robbery beyond reasonable doubt.

Ratio Decidendi

The Court of Appeal held that the presence of an accused person throughout the trial for an indictable offence or felony is a fundamental and mandatory requirement. Section 153 of the Criminal Procedure Code requires every accused person to be present during the whole of the trial, subject only to the limited exception of misconduct that makes continuation in the accused’s presence impracticable. Section 154 permits the court, in specified circumstances, to dispense with personal attendance, but subsection 154(3) expressly prohibits the court from sentencing an accused to imprisonment, detention, or disqualification without first adjourning for the accused’s personal attendance.

The court affirmed that “trial” includes the delivery of judgment and the imposition of sentence. Consequently, the accused’s presence is not required merely during the taking of evidence; it extends to conviction and sentencing. The absence of the appellant at that stage, without any explanation or finding that his conduct justified exclusion, amounted to a breach of the right to fair hearing and the principles of natural justice.

The court further held that the omission was not a mere procedural irregularity capable of being cured by proof that no miscarriage of justice occurred. The mandatory statutory safeguards were designed to protect the accused’s fundamental rights. The fact that the statutory punishment for armed robbery was death did not excuse the failure to call upon the appellant to make an allocutus. Even where the court has little or no sentencing discretion, the accused must be given the opportunity to address the court before sentence.

Court Findings

The Court of Appeal accepted the appellant’s contention that the trial record showed his presence during earlier stages of the proceedings but did not record his presence on the date judgment was delivered. Counsel appeared for him, but representation by counsel did not satisfy the specific requirement of personal attendance at sentencing under section 154(3). The court rejected the respondent’s argument that the absence of an express record of the appellant’s absence should be treated as an innocuous omission.

Relying on Mohammed v. The State, Asakitikpi v. The State, Adeoye v. The State, Hassan v. The State, and Adamu v. The State, the court emphasised that where the record is ambiguous, a criminal court should adopt the interpretation favourable to the accused. Since the record failed to demonstrate that the appellant was present or had made an allocutus, the court presumed that he was absent when the judgment and death sentence were pronounced.

Conclusion

The appeal was allowed. The judgment of the High Court of Kwara State in Suit No. KWS/17C/2014, delivered on 27 July 2015, was set aside. The Court of Appeal declared the trial a nullity because the appellant was convicted and sentenced in his absence. The case was remitted through the Chief Judge of Kwara State for a fresh trial before a different judge from the original trial judge. Justices Uwa and Ugo concurred with the lead judgment and the order for retrial.

Significance

The decision reinforces the constitutional and procedural importance of an accused person’s presence at every material stage of a criminal trial, particularly at judgment and sentencing. It confirms that an accused cannot be sentenced in absentia merely because counsel is present or because the offence carries a mandatory punishment. The judgment also demonstrates that failure to record the accused’s presence may have serious consequences where the record does not otherwise resolve the uncertainty. In criminal proceedings, ambiguity is interpreted in favour of the accused, and a fundamental breach of the right to fair hearing invalidates the proceedings rather than being treated as a harmless technical defect.