Can the Absence of One Accused Void the Trial of All? The Answer in State v. Abdullahi (2026) 4 NWLR (Pt. 2033) 141.
By Isah Bala Garba.
Today’s juridical suvery shall majorly be focusing on the procedural aspect of this decision, with less emphasis on the facts, as the facts themselves are not unusual. It is a typical case of armed robbery and unlawful possession of firearms involving multiple accused persons.They were Nine (9) in number, ALL charged together for what we call a “joint trial”. However, one striking feature stood out: the 9th accused person was never found throughout the trial Only the 1st to 8th accused persons were arrested, arraigned and made to face trial. Yet, at the point of judgment, the learned trial judge, held that he found “all the accused” guilty of the offence charged and accordingly sentenced them to death by hanging.
Now, that singular statement “all the accused” set the motion for the entire procedural controversy. The 5th accused person appealed.
At the Court of Appeal, Yola Judicial Division, the present respondent (who was the appellant at that court) raised a fundamental issue: whether convicting a person in absentia: one who was never present for arraignment, whose charge was never read to him, who never took a plea, and whose plea was never recorded, would not render the entire proceedings a nullity?
Surprisingly, the Court of Appeal found the argument convincing and answered the question in negative. It held that since the charge contained the names of nine (9) accused persons, the trial was a joint trial, and the absence of the 9th accused person throughout the proceedings ipso facto nullified the entire trial. In effect, the proceedings against the eight others were also rendered a nullity and the matter was ordered to be sent back to Chief Judge of Adamawa State for re-assignment to another judge other than the earlier judge for a fresh accelerated trial.
The State (Appellant) was however, dissatisfied that how could that be the law? No! That should not be the law. I also reasoned with the state that, that could hardly be the law, and in light of that, the State approached the Supreme Court.
Before delving into that central issue, the Supreme Court, per Idris, J.S.C., While delivery the lead judgement first addressed a procedural misstep by the State’s Counsel which is the improper couching of an omnibus ground of appeal. The appellant’s ground one (1) had complained that the judgment of the lower court was “against the weight of evidence.” At first glance, that sounds perfectly fine right ? But only in civil litigation it’s couched as such. My Lord put it straight that: of course, there is equally an omnibus ground in criminal appeals, but it is not the same as that in civil matters.
In civil appeals, the omnibus ground is properly couched as:
“The judgment is against the weight of evidence.”
This is so because civil cases are determined on the balance of probabilities, where the court weighs evidence on an imaginary scale.
However, in criminal appeals, the law is different. The burden is not on a balance of probability, rather beyond reasonable doubt. Consequently, the omnibus ground must be couched differently, as:
“The decision is unreasonable, unwarranted, and cannot be supported having regard to the evidence,”
or
“The judgment is against the evidence.”
The rationale is simple and settled because importing the phrase “weight of evidence” into criminal appeals is an invitation to the court to determine a criminal case using civil standards (which is balance of probability). That is fundamentally wrong and runs contrary to section 135(1) of the Evidence Act.
Accordingly, My Lord had no hesitation in holding that the appellant’s ground one of appeal, being one complaining of weight of evidence in a criminal matter, constituted a serious coup de grace to the competency of the said ground. It was, in his words, not arguable as it’s incompetent. It was therefore struck out.
Having cleared that procedural quagmire the court then turned to the main issue: the net effect of the absence of the 9th accused person. The Supreme Court approached the issue with precision: when does a joint trial truly arise? Is it merely when names are listed on a charge sheet? Or is it when accused persons are actually present, arraigned, heard, and subjected to the jurisdiction of the court?
The answer, as settled by the court, is the latter. As such, joint trial is not born on paper. It is born in the courtroom.
The 9th accused person, as revealed by the record, was marked “at large.” (i.e no where to be found) He was never arrested, never brought before the court, never arraigned, and never took a plea. In the eyes of the law, no trial ever commenced against him.
And as we all know, arraignment is the foundation of every criminal trial. It requires, concurrently:
the presence of the accused in the court unfettered;
the reading and explanation of the charge to him;
the taking of his plea; and
the recording of that plea by the court.
Failure of any of these renders the trial a nullity, but only in respect of that accused person.
Therefore, the Supreme Court found it flabbergasting that the Court of Appeal would hold that the absence of a person who was never part of the trial could invalidate proceedings against those who were properly before the court.
My Lord did not mince words and stated as follows:
“I am disappointed at how the Court of Appeal allowed itself to be swayed by such an attractive but baseless argument which screams ‘technicality’.”
Indeed, the eight accused persons who stood trial were present throughout. They were represented by counsel, cross-examined witnesses, and fully participated in the proceedings. They were given a fair trial, so the mere fact that the trial judge made a sweeping statement that “all accused” persons were convicted, even including the one at large, was, just an error. But such error, cannot, will not, and should not vitiate a judgment. Most importantly, that error did not occasion a miscarriage of justice against those who were properly tried. The Supreme Court, therefore held that the absence of the 9th accused person could only affect him, and him alone. It could not be used as a weapon to destroy the valid trial of the other eight. Consequently, the appeal succeeded in part. The judgment of the Court of Appeal was set aside, and the matter was remitted back to the said Court of Appeal court, not for a fresh trial at the High Court, but for a determination of the appeal on its merits in respect of the eight accused persons.
The other Justices, in their concurring judgments, also adopted the above reasoning of the lead judgment hook, line, and sinker as theirs, as it disclosed no ounce of hostility warranting their reprobation.
Simply put and very importantly: counsel must be meticulous in couching grounds of appeal. An omnibus ground in civil proceedings is not the same as that in criminal proceedings. To confuse the two is at your own peril o!
Equally, the absence of one accused person in a purported joint trial does not nullify the entire proceedings. It affects only that person, nothing more, nothing less!
As usual, we say: as the Court pleases. We are most obliged for the constant guidance. May Your Lordships continue to be blessed with long life and wisdom.
My dear readers, thank you for following through this lucid juridical survey.
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Isah Bala Garba is a Level 400 student of Common and Islamic Law and a Senior Advocate of Bayero University, Kano,(SABUK).He has authored numerous legal articles and analyzed many cases in clear, plain language. He can be reached for comments or corrections via: Email: [email protected] Tel: 08100129131
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