Whether Charge Can Be Sustained Under A Prospective Law

In the High Court of Kaduna State

In the Kaduna Judicial Division Holden at Kaduna On Wednesday, the 28th day of July, 2021

Before Their Lordships
G. I. Kurada J
Honourable Justice of the High Court of Kaduna State

Charge No: KDH/KAD/60C/2018

Between

THE STATE PROSECUTION
And

.1. MALLAM IBRAHIM EL ZAKZAKKY
2. MALLAMA ZEENAT IBRAHIM
3. YAKUB YAHAYA KATSINA (AT LARGE)
4. SANUSI ABDULKADIR KOIKI (AT LARGE) DEFENDANTS

(Lead Judgement delivered by Honourable G. I. Kurada J)

Facts

The Defendants were charged before the High Court of Kaduna State on an eight-count Charge of conspiracy to commit an illegal act, abetment of the commission of the offence of culpable homicide punishable with death; commission of the offence of unlawful assembly; commission of the offence of wrongful restraint; commission of the offence of disturbance of public peace, promoting unlawful assembly, abetment of the commission of the offence of voluntarily causing grievous hurt without provocation, and abetment of the commission of the offence of inciting disturbance. The charges were brought pursuant to, and as punishable under various Sections of the Penal Code Law of Kaduna State, 2017.

It was the case of the Prosecution that on 12th December, 2015, the Defendants, who were leaders of the Islamic Movement in Nigeria (“IMN”), abetted other members of IMN who were armed with dangerous weapons to commit the crimes, when they blocked major roads within Sabon Gari, Zaria and prevented the convoy of the Chief of Army Staff of Nigeria and other members of the public from gaining access to the roads. The Prosecution alleged that the Defendants also abetted other members of IMN to cause the death of a certain Cpl Yakubu Dankaduna, among the entourage of the Chief of Army Staff, who was allegedly shot when he alighted to try to disperse the members of IMN and clear the blockade.

The 1st and 2nd Defendant pleaded not guilty, to the eight counts. The plea of the 3rd and 4th Defendant could, however, not be taken, as they were at large. Thereafter, the court invited counsel for the Prosecution and the 1st and 2nd Defendants, to address it on the legal implication of the charges brought pursuant to the Penal Code Law of Kaduna State 2017, on offences that were alleged to have been committed in 2015.
After submissions of counsel on the point raised by the court, and after the Prosecution closed its case, counsel for the 1st and 2nd Defendant made a No Case Submission.

Issues for Determination

In its ruling on the No Case Submission, the court considered the following issues:

1. Whether the Charge against the Defendants under the Penal Code Law of Kaduna State, 2017 which was not in force in 2015 when the offences they were accused of were allegedly committed, could be sustained.

2. Whether the evidence led by the Prosecution in proof of each count of the charge against the 1st and 2nd Defendant, disclosed a prima facie case against them to warrant the continuation of the trial.

Arguments

On the first issue, the Director of Public Prosecutions (“DPP”) of Kaduna State submitted that the Charge pending before the court against the Defendants, was valid.

He argued that Section 398 of the Penal Code Law, 2017 repealed the Kaduna State Penal Code Law, CAP 110 of 1991 which was in operation at the time the offences were committed; hence, it would not have been lawful to charge the Defendants under the repealed Penal Code Law of 1991 in 2017. Responding, counsel for the 1st Defendant submitted that counts two and eight of the Charge were not known under the old Penal Code, and cannot be saved by the Penal Code Law, 2017. For counts three to six, he aligned himself with the position of the DPP that some of the ingredients are recognised under the old Penal Code and were valid; however, this was without prejudice to their No Case Submission. Counsel for the 2nd Defendant adopted the position of counsel for the 1st Defendant.

On the 2nd issue, counsel for the 1st Defendant submitted that the Charge of conspiracy was not proven against the 1st Defendant, and the totality of other offences was based on the allegation that the 1st Defendant used his position to abet certain people to commit serious offences. He argued that it was not enough to make an allegation of abetment, there must be evidence that the act abetted was actually committed, and during cross-examination of the Prosecution’s witnesses, it was established that all the IMN members that blocked the road were arrested and had been prosecuted before a separate court, and none of them gave evidence that they were abetted to commit the offences they were charged with. Furthermore, there was evidence showing that the said IMN members were discharged and acquitted; the implication was therefore, that the act complained of was never committed. On his part, counsel for the 2nd Defendant submitted that there was no evidence of any meeting between the 2nd Defendant and other Defendants or persons, or evidence of common intention or any act by the 2nd Defendant linking her to events, with respect to the blockade of the roads on 12th December, 2015. He argued that merely being the wife of the 1st Defendant, cannot amount to abetment or any offence at all.

In respect of this issue, the DPP submitted that, in law, conspiracy can be made without the parties meeting or knowing each other, and a conspirator can be convicted without the principal offender being convicted; the same as abetment. He urged the court to overrule the No Case Submission and call on the Defendants to enter their defence.

Court’s Ruling and Rationale

Deciding the first issue, the court held that a Defendant can only be charged under a law that was in force at the time the alleged offence was committed – MOHAMMAD SELE v THE STATE (1993) LPELR – 3030 (SC). Relying on the decision of the Supreme Court in BELLO BA’RAU GUSAU v ALL PROGRESSIVES CONGRESS & 3 ORS. (2019) 2 SCNJ (Pt. 1) 1, the court held that if an amendment to an existing law is an enactment of a substantive law rather than a matter of procedure, then the operation cannot be retrospective and must be prospective. It also relied on Section 36(8) of the 1999 Constitution and adopted the decision of the Supreme Court in GABRIEL DAUDU v FRN (2018) LPELR – 43637 (SC), where the Apex Court held that it is the substantive law in operation at the time an offence is said to have been committed, that has to be referred to when a person is charged to court. Further, by the provision of Section 400 of the Penal Code Law, 2017 any act established as an offence under the Penal Code Law, 1991 shall continue to be so until the final determination of such case under that law. His Lordship held that the Charge against the Defendants under a substantive law that was not in operation at the time the offences they were charged with were allegedly committed, was incompetent, and fundamentally defective, and the Defendants could not answer to same.

Notwithstanding the conclusion above, the court proceeded to consider the Defendants’ No Case Submission, holding that a Charge does not constitute evidence, and the onus is on the Prosecution to prove the allegations or elements of the offence strictly as contained in the Charge, since the purpose of the Charge is to give good notice to the Defence of the case against it. The evidence led by PW4, PW5 and PW6 were in respect of other events involving the IMN, which happened at other places and at other times totally different from the events of 12th December, 2015. Their evidence was thus, irrelevant to the Charge before the court.

The court held further that, the fact that the 2nd Defendant is the 1st Defendant’s wife does not amount to a conspiracy or abetment of an offence. All the eight counts alleged that the Defendants were leaders of IMN; however, none of the Prosecution witnesses testified that the 2nd Defendant is the leader, or a leader of IMN. The evidence against the 2nd Defendant, therefore, did not disclose the commission of the offences alleged against her, to require any explanation from her.

On the Charge of criminal conspiracy against the 1st Defendant, His Lordship found that although conspiracy may be a matter of inference from the evidence before the court, there must however, be evidence of certain criminal acts of the parties charged, done in pursuance of an apparent criminal purpose, from which the court can make its inference – GODWIN DABO & ANOR v THE STATE (1977) ALL NLR 146. No prima facie case for the offence of conspiracy had been disclosed against the 1st Defendant, as there was no evidence before the court or circumstances from which the court could infer that the 1st Defendant engaged in an agreement with other members of IMN to commit the offences.

On the 2nd, 3rd, 4th, 5th, 7th and 8th counts which bordered on abetment of the commission of several offences, the court held that the act abetted must have been committed in pursuance of the abetment, in order to constitute an offence punishable under the section. If an act has not been committed or proved to have been committed, it follows that it could not have been abetted. In the instant case, however, there is absolutely no evidence of any act of encouragement by the Defendants on 12/12/2015 to the “other members of the sect” the Defendants are alleged to have abetted to commit the alleged offences, as alleged in the Charge.

The court held further that the normal practice is for the person alleged to have abetted an act or omission, to be charged together in the same Charge with the person alleged to have been abetted to do the act. Both will then be before the court, or at least be given the opportunity to be in court and be heard when the case is heard. The court will then be clothed with jurisdiction to consider the evidence, and make findings and pronouncement as to whether the offence was actually committed. In the instant case, the identities of the other members of the sect they were said to have abetted were not disclosed in the Charge; they were not charged together with the Defendants, and there was no evidence that the acts of the other members of the sect which the Defendants were alleged to have abetted, were actually committed.

On the 6th count of promoting unlawful assembly by encouraging people to join the Islamic Movement in Nigeria which is not a registered organisation, the court held that there was no evidence of any identified person that the Defendants encouraged to join the organisation on 12/12/2015 at Zaria. Those alleged to have killed the said Cpl Dankaduna were not made parties to the Charge; therefore, the court lacked the jurisdiction to determine evidence given in their absence, and conclude that they actually killed the deceased. More so, by the evidence before the court, members of IMN had been charged in a separate Charge before the High Court, Bida Road for all the offences alleged in the instant case, including the killing of Cpl Dankaduna, but there was no evidence that the court found the offences to have been committed.

No Case Submission Upheld; Defendants Discharged.

Representation

D. Bayero, Director of Public Prosecutions Kaduna State, for the Prosecution.
Femi Falana, SAN with Marshali Abubakar for the 1st Defendant.
Edwin Inegedu Esq. for the 2nd Defendant.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)