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.)

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.)