In the Supreme Court
Holden at Abuja
Fri,23 June 2017
Suit Number
SC. 844/2015
Between
AUWALU ABDULLAHI ................ Appellant
and
FEDERAL REPUBLIC OF NIGERIA. .. ............ Respondent
Judgements
RULING
(Delivered By Paul Adamu Galinie, JSC)
The Appellant herein alone with one Isiaku Salisu, were on the 19th January, 2010 arraigned before the Federal High Court, Jos Division on a two count charge of conspiracy and terrorism contrary to Section 518 of the Criminal Code Act and Section 15(2) of the Economic and Financial Crimes Act 2004. After series of preliminaries, the case went to trial. At the end of the trial and in a reserved and considered judgment which was delivered on the 17th day of December, 2010, the appellant and his co- accused were found guilty on both counts. For the 1st count each of them was sentenced to two years imprisonment, and for the 2nd count, each was sentence to seven years imprisonment. The sentences were ordered to run concurrently. The appellants appeal to the Court of Appeal, Jos Division was partially allowed. The lower court set aside the conviction and sentence in respect of the 1st count, but affirmed the conviction and sentence in respect of the 2nd count. This appeal is against the decision of the Court of Appeal Jos, Division. The Appellants notice of appeal at pages 274 -- 276, dated 29th July, 2015 and filed on 30th July, 2015 contains two grounds of appeal which I reproduce hereunder without their particulars as follows-
1. The Court of Appeal erred in law when it held that the court properly assumed jurisdiction to try and convict the Appellant when there was no proper arraignment of the Appellant, which occasioned a miscarriage of justice on the Appellant.
2. The decision of the trial court is altogether unwarranted, unreasonable and cannot be supported having to the evidence before the Court.
Parties filed and exchanged briefs of argument. Mr. A. S Garba, learned counsel for the appellant distilled one issue for determination of this appeal. The sole issue reads as follows-
Whether from the record of proceedings, there was a proper arraignment of the appellant before his trial, and sentence by the trial court. The sole issue in distilled from the first ground of appeal. It follows therefore that the 2nd ground of appeal is abandoned, since no issue is formulated from it. Mr. Charles Ihua-Maduenyi, learned counsel for the Respondent merely adopted the sole issue formulated by learned counsel for the appellant.
In his argument, learned counsel for the appellant submitted that there was no proper arraignment of the appellant at the trial court before his trial conviction and sentence. According to the learned counsel, the charges were neither read and explained to the Appellant nor was his plea recorded.
In a further argument, learned counsel submitted that the legal effect of failing to comply with the mandatory requirement of Section 187(1) of the Criminal Procedure Code and Section 215 of the Criminal Procedure Act has rendered the entire proceedings a nullity. In aid learned counsel cited Yerima v State (2010) 14 NWLR (Pt. 1213) 25 at 44 - 45 Paras F - B; Okoli v State (2012) 1 NWLR (Pt.1281) 385 at 400 Paras E - G. Still in argument, learned counsel submitted that the record of the court must show clearly that there was compliance with the procedure. In aid learned counsel cited Yusuf v State (2011) 18 NWLR (Pt. 1279) 853 at 879 - 880 Paras G - D; Kavode v State (2008)1 NWLR (Pt. 1068) 281 at 301 Paras B - G.
In reply, learned counsel for Respondent submitted that there was absolute compliance with the requirement of Section 215 of the Criminal Procedure Act as enunciated by Kutigi CJN in Lafadeju v Johnson (2007) ALL FWLR (Pt. 371) 1532 at 1537 when the appellant was arraigned before the trial court on the 15th June, 2010. Learned counsel enumerated the essential requirements of a valid arraignment and invited the court to scrutinize pages 103 - 106 where the arraignment of the appellant was recorded.
Learned counsel urged this court to presume that the correct procedure was followed in absence of any contrary evidence. In aid learned counsel cited Lockman v State (1972) 5 so 22; Edun v I.G.P (1966) 1 ALL NLR 17; and Ogunye v State (1999) 5 NWLR (Pt. 604) 548 at 566 - 569.
This court, has in a number of cases laid down the three requirements for a valid arraignment as follows:-
1. The accused person shall be present in court unfettered unless the court shall
see cause to otherwise order that he be unfettered.
2. The charge or information shall be read over and explained to him in the
language he understands to the satisfaction of the court by the Registrar or other officers of the court.
3. The accused person shall then be called upon to plead instantly thereto unless
there are valid reasons to do otherwise as provided in the law.
An arraignment is not a matter of mere technically, it is a very important initial step in the trial of a person on a criminal charge. Where there is no proper arraignment, there is no trial. In other words, failure to comply with the requirement for a valid arraignment, will render the whole trial a nullity. See Okeke v State (2003) 15 NWLR (Pt. 842) 25 (2003) 2 SC 63. Yerima v State (2010) 14 NWLR (Pt. 1213) 25, Lufadeju v Johnson (supra)
On the 5th of February, 2010, a two count charge, one under the Penal Code and the other under the Efcc Act, dated 4th February, 2010 was properly read and explained to the Appellant in the language he understood. (See page 103 - 104 of the record of this appeal.) On the 7th of May, 2010, the prosecutor applied to withdraw court 1 from the same charge dated 4th February, 2010. The learned trial Judge struck out the first count under the Penal Code.
Ordinarily, since the appellant had pleaded to the remaining count 2 previously, there was no need to take a fresh plea. However for abundant of caution, the learned trial Judge decided to take the plea once more. The learned trial Judge ordered the registrar to read the charge to the appellant and his co-accused and each of them pleaded not guilty to the charge. If the charge were not read and explained to the appellant, to what did he plead not guilty? Appellant was represented by counsel. Could his counsel allow him plead to a charge that was not read and explained to his client. In Okeke v State (supra) this court per Ogundare JSC had this to say:-
There appears to be fairly rigid and in?exible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of citizen. Equally, the courts should not ignore the nature of the rights protected and the preservation of the courts in the discharge of their sacred and solemn duty to do justice. There is clearly observable the distinction between a matter of procedure that Effects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial in the latter case it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on record to show that the accused understood the charge and was in no way misled by the absence of explanation ex-facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment. However where there is counsel in the case defending an accused person, the taking of the plea by the court it ought to be presumed in favour of regularity, namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken.
See Section 168(1) of the Evidence Act 2011 which provides that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The arraignment of the appellant was both a judicial and an official act. It was carried out in a manner which was substantially regular. The essence of laying down the requirement for arraignment is to ensure that an accused person is given a fair trial. Where an accused appears to understand the meaning of the charge and makes a meaningful response to the charge by pleading thereto, the trial can only be vitiated where the accused shows that he failed to understand the charge in all its ramification on the ground that same was not interpreted and explained to him. In the instant case, the charge that was read to the appellant had previously been read and explained to the appellant. Not only that, on the 7th of May, 2010,the appellant was duly represented by counsel and he pleaded to the charge accordingly.
The arraignment of the appellant in my view was substantially in accordance with Section 215 of the Criminal Procedure Act and Section 36(6) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria 1999.
For the reasons I have demonstrated in this judgment and the more detailed reasoning in the lead judgment of my learned brother SANUSI, JSC. I find this appeal lacking in merit. Accordingly, same shall be and it is hereby dismissed.
(Delivered by Chime Centus Nweze, JSC)
My Lord, Sanusi, JSC, obliged me with the draft of the leading judgement just delivered now. I endorse the conclusion that, as this appeal is unmeritorious, it ought to be dismissed.
The question here revolves around the issue of proper arraignment which this court has dealt with ad nauseam, Josiah v. State 1985 1 NWLR (pt. 1) 125; 1985 1 SC 406; Kajubo v. State 1988 1 NWLR (pt. 73) 721, 731; 1988 3 SCNJ (pt. 1) Ebem v State 19907 NWLR ( pt.160) 113; Idemudia v. State 19995 SCNJ 47; Onuoha Kalu v The State 1998 13 NWLR (pt 583) 531 Erekanure v The State 1993 5 NWLR (pt. 294) 385; Omokuwajo v FRN (2013) LPELR 20184 (SC); Sharfal v The State (1992) LPELR 3038 (SC) 11.
Others include: Ogunye v The State 1999 5 NWLR (pt 604) 548, 567; Ewe v The State (1992) LPELR -1179 (SC); Debie v The State 2007 9 NWLR (pt 1038); Lufadeju and Anor v The State (2007) LPELR -1795 (SC); Olabode v The State (2009) LPELR-2542 (SC); Amako v The State (1995) LPELR 451 (SC); Olabode v The State (2009) LPELR - 2542 (SC); Amako v The State (1995) LPELR -451 (SC); Josiah v The State 1985 1 SC 400, 416; Eyorokoomo v The State 1979 89 SC 3; Dibie v The State 2007 9 NWLR (pt. 1038) 30, 61-62; Edibo v The State (2007) LPELR 1012 (SC); Adeniji v The State(2001)LPELR -126 (SC); Madu v The State (2012) LPELR -7867 (SC); Oguniye v The State 1999 5 NWLR (pt 604) 548, 555; Rufai v The State (2001) LPELR -2963 (SC); Effiom v The State 1995 1 NWLR (pt 373) 507; Adeniji v The State 2001 FWLR (pt 57) 809; Omokuwajo v FRN (2013) LPELR -20184 (SC); Ogunye v The State 1999 5 NWLR (pt 604) 548, 567.
From my perusal of the record of the trial court on pages 103 -106 of the record, 1 am satisfied that the lower court, rightly, affirmed the trial courts approach to the arraignment of the appellant.
It is for these, and the more detailed, reasons in the leading judgement that I, too, shall dismiss this appeal as lacking in merit! Appeal dismissed.
(Delivered by Olabode Rhodes-Vivour, JSC)
I have had the advantage of reading in draft the leading judgment of my learned brother, Sanusi JSC. I agree with his lordship that the arraignment of the appellant was conducted in accordance with section 215 of the Criminal Procedure Act. I shall say a few words of mine on the importance of arraignment and how it should be conducted.
The provisions of section 215 of the Criminal Procedure Act are mandatory. For there to be a valid arraignment this procedure must be complied with by the court.
1. The accused person shall be placed in the dock unfettered.
2. The Charge is read to him in the language he understands.
3. The accused takes his plea. See
Yusuf v State (2011) 18 NWLR (Pt.1279) p.853
Ajile v State (1999) 9NWLR (Pt.619) p. 503
Kajubo v State (1988) 1 1NWLR (Pt.73) p.721
When the above is done there would be compliance with section 215 supra, and section 36 (6) of the Constitution, which states that:
36(6) Every person who is charged with a criminal offence shall be entitled to:
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.
Sections 215 of the Criminal Procedure Act and section 36 (6) of the Constitution guarantees fair trial of an accused person. Once again compliance is mandatory.
Where there is non-compliance, for example if the Charge is read to the accused person in a language he does not understand or if his plea is not taken the trial would be declared a nullity.
Furthermore the trial judge is expected to record in detail that there was compliance.
Learned counsel for the appellant submits that the charge/s were neither read and explained to the appellant nor was his plea recorded.
The arraignment of the appellant could be found on pages 103 - 106 of the Record of Appeal.
An examination of the pages supra reveals that the learned trial judge ordered the Registrar of the court to read and explain the charge to the appellant. This was done and the appellant entered a plea of not guilty.
All the requirements were complied with and since there was no complaint at the time the arraignment was conducted, to raise it now is clearly an afterthought. I am satisfied that the arraignment of the appellant was in accordance with section 215 of the Criminal Procedure Act and Section 36 (6) of the Constitution.
For these brief reasons, as well as those more fully given by my learned brother Sanusi JSC, I too dismiss this appeal
(Delivered by MUSA DATI'IJO MUHAMMAD, JSC)
I read in draft the lead judgment of my learned brother AMIRU SANUSI JSC just delivered and in agreeing with the reasoning and conclusion therein that the appeal lacks merit do hereby dismiss same.
I abide by the consequential orders made in the lead judgment.
APPEARANCES OF COUNSEL:
MR. A.I GEORGE for the Appellant.
MR CHARLES IHUA-MADUENYI and Lindy Ihua-
Maduenyi (Miss) for the Respondent.