In The Court of Appeal

(Abuja Judicial Division)

On Tuesday, the 22nd day of April, 2008

Suit No: CA/A/37/C/05

Before Their Lordships

 Between

 And

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading judgment): In the High Court of Niger State, holden at New Bussa, the Appellant was charged on a three-count information as follows:

"1. that you Sumanya Issah Torri did commit illegal entry to wit: You entered into Shaffini area of the Kainji Lake National Park within the New Bussa Judicial Division on the 31st day of March, 2004 at about 5: 30 p.m. And that you thereby committed an offence contrary to Section 30(1) of the National Park Service Act No. 46 of 1999 and punishable under Section 38 (1) of the same Act.

2. That you Sumanya Issah Torri did commit illegal hunting and killing of animals to wit: you hunted and killed animals that is, western Heartbeast, Jackal and tooth of warthog in Shaffini area of the Kainji Lake National Park within the New Bussa Judicial Division on the 31st day of March 2004 at about 5:30 p. m. And that you thereby committed an offence contrary to Section 31(1) (a) of the National Park Service Act No. 46 of 1999 and punishable under Section 38(2) (a) of the same Act. 

3. That you Summanya Issah Torri did commit illegal possession of weapons to wit: You were in possession of a done gun, a cutlass and a knife in Shaffini area of the Kainji Lake National Park within the New Bussa Judicial Division on the 3rd day of March, 2004 at about 5:30 p.m. And that you thereby committed an offence contrary to Section 32(1) of the National Park Service Act. No. 46 of 1999 and punishable under Section 38(3) of the same Act. "

In the trial Court Coram C. 1.Auta J., the Appellant was arraigned. He pleaded guilty to the charge, was convicted and sentenced to a cumulative term of nine years imprisonment on 5/1/04.

Being dissatisfied with the judgment, the Appellant was compelled to appeal to this Court.

The Appellant filed a Notice and Grounds of Appeal which was deemed properly filed and served on 5/10/06. The said Notice and Grounds of Appeal containing seven grounds of appeal with their particulars are at pages 8 to 11 of the record of appeal.

Both sides filed and exchanged briefs of argument as provided by the Rules of this Court.

The briefs were adopted by the learned counsel for both parties at the hearing of this appeal on the 24th of January, 2008.

Learned counsel for the Appellant, Mr. Chukwuma-Machukwu Ume urged this Court to allow this appeal, quash the trial and acquit the Appellant.

Replying, Mr. F. A. Bebu learned counsel for the Respondent urged this Court to dismiss the appeal, affirm the judgment of the trial Court, and confirm the conviction and sentence of the Appellant.

In the Appellant's brief of argument which was filed on 16/11/06, six issues were distilled from the seven grounds of appeal by the Appellant's learned counsel for the determination of this appeal. They are:

1. Whether the trial Court was right to have assumed jurisdiction and allowed the prosecution counsel to institute and prosecute this action without the consent of the Attorney-General of the Federation as required under Section 41 (1) of National Park Service of Nigeria?

2. Whether the trial Court was right to have granted leave to the Respondent to prefer a charge against the Appellant considering the requirements of the law on application to prefer a charge and the circumstances under which it was granted?

3. Whether the Appellant had a fair hearing considering the manner of his trial and conviction?

4. Whether the trial Court was right to have convicted the Appellant solely on his plea of guilty to the offence charged without calling on prosecution to prove its case,?

5. Whether the trial Court was right in convicting the Appellant by relying on the prosecution counsel's statement without evidence before the court?

6. Whether there was evidence before the Court to support the conviction and sentencing of the Appellant for an offence under Section 30(1) 31(1) (a), and 32(1) of the National Park Service Decree No.46 of 1999?

The learned counsel for the Respondent in the Respondent's brief of argument which was deemed filed on 13/3/07 adopted issues one, two, three, four and six formulated by the Appellant in the Appellant's brief of argument for the resolution of the appeal. The said issues have been reproduced supra.

The Court of Appeal is free to adopt the issues formulated by parties or even formulate issues which it considers appropriate for the determination of the real complaints in an appeal. See the cases of:

(1) Ikegwuoha V. Ohawuehi (1996) 3 NWLR (Pt. 435) p, 146 and

(2) Aduku V. Adejoh (1994) 5 NWLR (pt. 346) p. 582.

In the circumstances of this appeal, I find it convenient to use the issues formulated by the Appellant. I adopt them accordingly. I shall take issues one and two together. They relate to the legal propriety of the prosecution of the Appellant without the express permission of the Attorney-General of the Federation, the competence of the trial Court to properly grant leave for the preferment of the charge against the Appellant and adjudicate upon the case.

ISSUES ONE AND TWO

Whether the trial Court was right to have assumed jurisdiction and allowed the prosecution counsel to institute and prosecute this action without the consent of the Attorney-General of the Federation as required under Section 41 (1) of National Park Service of Nigeria?

Whether the trial Court was right to have granted leave to the Respondent to prefer charge against the Appellant considering the requirements of the law on application to prefer a charge and the circumstances under which it was granted?

The learned counsel for the Appellant submitted that the institution and the prosecution of the criminal action against the Appellant by the counsel for the Kainji Lake National Park Service in contravention of Section 41 of the National Park Service Decree No. 46, 1999 is fatal to the trial, conviction and sentence of the Appellant. The Decree provides that any officer of the Service may with the consent of the Attorney-General of the Federation, conduct criminal proceedings in respect of offences under the Decree or any regulation made under the Decree.

On the face of the record, it was not indicated that the consent of the Attorney-General was obtained.

The issue of competence to institute a criminal action is a vital one and it renders an entire trial a nullity if it is shown that there was no competence to institute an action. On this position of the law, reliance was placed on the cases of:

(1) Samuel Chike Onwuka V. The State (1970) ANLR p.164 at p.168:

(2) James V. Nigerian Air Force (2000) 13 NWLR (pt. 684) p. 406 at p. 410 and

(3) A.P. Anyebe V. The State (1986) 1 SC P. 87 at P.88

It was submitted for the Appellant under" issue two that the procedure for applications for leave to prefer a charge is as provided under Section 185 (b) of the Criminal Procedure Code and Order 3 Rules 1(a) & (b), 2(a) & (b) and 3(a) & (b) of the Criminal Procedure (Applications for Leave to Prefer a Charge in the High Court) Rules 1970. He argued that the failure of the trial Court to adhere to those clear provisions of the law and the rules guiding the application for leave to prefer a charge and the fact that the trial Court granted the leave on the same day that the Appellant was arraigned and convicted rendered the leave granted on the 8/7/04 and the subsequent conviction and sentence based on the leave granted null, void and of no effect.

The learned counsel for the Appellant canvassed that it is trite that the court ought to insist on proof or evidence which must disclose the commission of a crime before granting leave to prefer a charge. He relied on this position on the case of: Alhaji Gaji Vs. The State (1975) NNLR p. 98 at p. 112. (1975) 5 SC p. 61 at p. 83. Where the application is accompanied by proof of evidence which does not disclose any crime, the information will be quashed. He relied on the case of: Fred Egbe V. The State (1980) 2 CA p. 168 at p.176 paras 15-25.

It is a settled principle of law that the accused must be served with the information and hearing notice three days before his trial. This certainly is to enable him know what he is being tried for and prepare his defence. A situation as in the instant case where the Appellant was taken from the prison to the court room had a charge preferred against him, convicted and sentenced on the same day fell short of justice under the law. Reliance was placed on the case of: Onisuru Owhovriole V. The State (1980) 4 CA p. 96.

Section 185 (b) of the Criminal Procedure Code provides that no person shall be tried by the High Court unless a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court. Failure to comply with these provisions rendered the trial of the Appellant null and void. Reliance was placed on the cases of:

(1) Ariwodo Vs. The State (1986) 11 CA p. 150 at paras 5-10 and

(2) Reg. V. Leyland Justices Ex parte Hawthorn (1979) 2 WLR. p. 28

The Appellant is therefore entitled to have his conviction quashed.

Replying on issue one, the learned counsel for the Respondent submitted that the cases cited and the position taken for the Appellant are inapplicable to the case at hand. He contended that the Prosecutor, Godwin I. Ugwuja was competent to institute and prosecute the charge against the Appellant at the High Court of Niger State sitting at New Bussa. For, the purport of Section 41 of the National Parks Service Decree is that, any staff of the National Parks Service can undertake the prosecution of a person accused of contravening any provisions of the National Parks Service Decree in a court of law except in cases where the Attorney-General of the Federation wants to initiate or undertake such prosecution or take over or terminate any prosecution already commenced by a staff of the National Park Service. On this position, he relied on the case of: Sunday Olusegun Olusemo V. Commissioner of Police (1998) 11NWLR (pt. 575) p. 574 at p. 563.

The Respondent's learned counsel contended further as a corollary that there is an implied-consent of the Attorney-General of the Federation to the prosecution of offences under the National Park Service by any staff of the National Park Service by operation or law.

The Attorney-General of the Federation being the draftsman of the Federation at the time the National Parks Service Decree (No, 46) of 1999 was promulgated, he is deemed to have full knowledge of the provisions of the Decree including Section 41 thereof. Additionally, it is practically impossible to obtain an express consent of the Attorney- General of the Federation for every criminal prosecution to be undertaken by the existing eight National Parks operating at different parts of the country. It is only the Attorney-General of the Federation that can question any alleged unauthorized criminal prosecution by any staff of the National Parks Service. He relied on the case of: Olusemo v. Commissioner of Police supra at p. 564 para. C

In the case at hand, the Prosecutor, Godwin I. Ugwuja Esq. who is also a legal practitioner was competent to prosecute .the Appellant before the High Court. He referred in this regard to the provisions of Section 2(3) of the Legal Practitioners Act, Cap, 2007, Laws of the Federation of Nigeria, 1990 and the Law Officers (Entitlement to Practice) Order promulgated pursuant to the Legal Practitioners Act. He referred further to the case of: Olusemo V. Commissioner of Police supra at pgs 556-557 paras H-A,

The learned counsel for the 'Respondent also argued that the Attorney-General of the Federation or of the State as the case may be, does not have the exclusive power to conduct public prosecution on behalf of the State. In appropriate cases, as in the case which gave rise to this appeal, some other persons and authorities can and do undertake criminal or public prosecution. He relied on the case of: Comptroller, Nigeria Prisons Services & 2 Ors. V. Dr Femi Adekanye & 25 Ors, (2002) 11 NSCQR p. 244 at p. 250 para B.

The Respondent's learned counsel submitted in his reply under issue two that the Prosecutor at the High Court fully complied with the relevant provisions of the law and the rules guiding applications for leave to prefer a charge at the High Court. He referred to pages 1 to 3 of the record of appeal containing copies of the application by the prosecutor to prefer a charge against the Appellant before the High Court, an affidavit in support of the application and the charge. The proof of evidence was mentioned both in the application and the affidavit in support of the application. It may have been inadvertently omitted during the compilation of the records. There, is no doubt that His Lordship at the court below saw the proof or evidence and was satisfied with the entire application to prefer a charge against the Appellant and therefore granted leave to the Prosecutor to prefer the charge.

It was contended for the Respondent that the Appellant was arraigned before the Court after leave had been obtained so that the trial Court would admit him to bail since he had been in Police custody. However, because the Appellant pleaded guilty to the charge, it became imperative that the trial Court should convict him based on his plea.

Thus, the peculiar circumstances of the case dictated that the Appellant was arraigned, tried, convicted and sentenced on the same day that leave to prefer a charge against him was granted by the trial Court.

The Application for leave to prefer a charge against the Appellant at the Court below by the Prosecutor- was in effect to ask for the discretion of the trial Court. Reliance was placed on the case of: Milton P. Ohwovoriole, SAN V. Federal Republic of Nigeria (2003) 13 NSCQR p. 1. It is trite that an appeal Court will rarely interfere with a discretion exercised by a trial Court as this will entail substituting its own discretion for that of the trial Court. This Court was therefore urged to decline the invitation to interfere with the discretion of the lower Court which had been properly and regularly exercised. He referred on this position to the case of: Uchenna Nwachukwu Vs, The State (2002) 11 NSCQR p. 663.

I have carefully perused the record of appeal and the submissions of counsel for both parties in this appeal. The grouse of the Appellant under issue one borders on the competence or Jurisdiction of the trial Court. It is the contention of the Appellant that the Respondent failed to obtain the consent of the Attorney-General of the Federation before instituting the criminal charge against him as required by the provisions of Section 41 of the National Park Service Decree No. 46 of 1999.

The general principle of law that is well-established is that, a court is only competent to adjudicate upon a case when the case has been initiated by due process of law and upon the fulfillment of all conditions precedent to the exercise of its jurisdiction. See the cases of:

(1) Madukolu V. Nkemdilim (1962) All NLR (Pt. 2) P. 581;

(2) Ogbaegbe V. FBN Plc (2005) 18 NWLR (pt. 957) p. 357;

(3) Ajibola V. Sogeke (2003) 9 NWLR (Pt 826) p. 494;

(4) Apugo & Sons Ltd V. Orthopeadic Hospital Management Board (2005) 17 NWLR (Pt, 954) p.305 and

(5) Okumodi V. Sowunmi (2004) 2 NWLR (Pt. 856) P. 1.

Section 185(b) of the Criminal Procedure Code provides that:

"No person shall be tried by the High Court unless

(a) ...

(b) a charge is preferred against him without the holding of a preliminary inquiry by Leave of a Judge of the High Court."

An application for Leave to prefer criminal charge pursuant to Section 185(b) of the Criminal Code shall be made in accordance with the relevant rules of the Criminal Procedure (Applications for Leave to prefer charge in the High Court) Rules. Under the said Rules, the application shall be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, proof of evidence that is, the written statements of the witnesses and the accused person, which shall be relied on at the trial.

The applicant who must be the Attorney-General of the Federation or of a State (depending on the nature of the charge) or a counsel in his office acting on his behalf shall also inform the court that no application for such Leave has been made previously in the case and that no preliminary investigation is being conducted in any Magistrate Court. Acting under the said Rules, the trial Judge has the discretion to grant or refuse the application, and this discretion can only be exercised after the trial Judge must have examined the proof of evidence and all the documents filed in support of the application.

The court order on the application for leave to prefer the charge against the Appellant is contained in lines 7 to 10 at page 5 of the Record of Appeal, that is, page 1 of the proceedings of the trial Court on 5/4/04. It reads:

''I have carefully considered the application of the Learned Counsel to the applicant and I am satisfied that it is a proper case to grant the application. Accordingly, leave is hereby granted. The accused is to be tried in the High Court."

The following documents were filed with the application For Leave to prefer the charge:

(a) The proof of evidence of the witnesses in the case.

(b) The charge intended to be preferred against the accused person.

(c) List of exhibits.

Before it can be said that the learned trial Judge exercised his discretion, that is to say with sufficient, correct and convincing reasons and not on his whims and fancies, he must have examined all the materials before him and considered the applicable Law. See the case of: U.B.A. Ltd V. Stahibu GMBH and Co. KB (1989) 6 SC (Pt. 1) p. 22

The application to prefer a charge and the charge are contained in pages 1 to 4 of the Record of Appeal. Both the seeking of and obtaining the consent of the Attorney-General and the procedure of application for Leave to prefer charges against an accused person are judicial and official acts. The law is trite that 'where on the face of the record, an official or a judicial act has been carried out in a manner which is substantially regular, the maxim "omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium", upon which ground there is a presumption of law that judicial and official acts have been done rightly and regularly until the contrary is proved, will apply. This is because by virtue of Section 150(1) of the Evidence Act, 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. 

It seems to me, if I may say with respect that there is nothing in the printed record to suggest that the consent of the Attorney-General was not sought and obtained and or that the learned trial Judge was incorrect to grant the Respondent Leave to prefer a criminal charge against the Accused person/Appellant. The learned trial Judge considered the application of the Respondent and was satisfied with it along with its accompaniments. I hold that the charge under consideration was duly instituted against the Appellant and the trial Court was competent to adjudicate upon the case. The learned trial Judge to my mind properly exercised his discretion to grant the Leave. Issues one and two are hereby resolved in favour of the Respondent.

I shall now take issues three, four, five and six together. The issues therein have to do with whether the Appellant was given fair hearing at his trial; whether it was proper to convict the Appellant solely on his plea of guilty and whether the trial Court properly convicted and sentenced the Appellant in respect thereof without calling on the prosecution to prove the charge against the Appellant beyond reasonable doubt, as required by law in criminal trials.

ISSUES THREE, FOUR, FIVE AND SIX

Whether the Appellant had a fair hearing considering the manner of his trial and conviction?

Whether the trial Court was right to have convicted the Appellant solely on his plea of guilty to the offence charged without calling on prosecution to prove its case?

Whether the trial Court was right in convicting the Appellant by relying on the prosecution counsel's statement without evidence before the court?

Whether there was evidence before the Court to support the conviction and sentencing of the Appellant for an offence under Section 30(1), 31(1) (a), and 32(1) of the National Park Service Decree No.46 of 1999?

The Appellant's learned counsel argued that failure to give the Appellant adequate time and facility to prepare his defence and the fact that he was not represented by a counsel in an offence so technical as the one under consideration is a denial of fair hearing. On this position, reliance was placed on the case of: Ajile V. State (J999) 9 NWLR (pt. 619) p. 503 at p. 505.

The Appellant's learned counsel opined that a serious offence such as stated in the charge preferred against the Appellant should not have been tried summarily. He relied on the cases of:

(1) R. V. Cox (1950) 53 Cr. App. R.P 66 and

(2) R. V. Pitson (1972) 56 Cr. App. R. p. 391.

In the opinion of the Appellant's learned counsel, by the summary trial of the Appellant, he was deprived of his constitutionally guaranteed right to be legally represented and fairly tried. The trial Court after curiously granting leave to prefer a charge against the Appellant, justice and fair play demanded that the Appellant should have been given an opportunity to consider the gravity of the charge against him and be cautioned on the need to have a legal representation. Indeed, the Court ought to have secured a counsel for or assigned one to the appellant knowing the gravity of and punishment for the offence. An offence attracting the maximum imprisonment of nine years without an option of fine ought not to have been treated so lightly. He relied on this position on the case of: Ogboh V. F.R.N (2002) 10 NWLR (Pt.774) p. 21 at p. 27

The Appellant's learned counsel reiterated further that the right to be heard is a fundamental and indispensable requirement of any judicial decision. On this legal principle, he referred to the cases of:

(1) State V. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33 at p. 38 and

(2) Kim V. The State (1992) 4 NWLR (pt. 233) P. 17 at p. 20

The Appellant's learned counsel opined that the anxiety of the Appellant who probably had not been to the four walls of a court room before the day in question and was not in this case represented by a legal practioner is very obvious. The only rightful or logical conclusion is that he was coerced into pleading guilty and going on with the trial unrepresented by a counsel. He argued that the procedure adopted by the trial Court in the instant case by which it granted leave to prefer a charge against the Appellant and went ahead to convict and sentence him the same day is unknown to law and practice. It was an infringement on the Appellant's right to know the case against him; have adequate time and facility to prepare for his defence; have legal representation and put his case across properly. He relied on the cases of:

(1) Tsaku v. State (1986) 1NWLR (Pt. 17) p, 516 at p. 519;

(2) Nathan Ekwelem V. IGP (1963) 7 ENLR p. 31 and

(3) Stevenson V. United Road Transport Union (1977) 2 All E.R. p. 941 at p. 951

The Appellant's learned counsel contended that the trial Court engaged in hasty or hurried justice. Such had been condemned by the Supreme Court in the cases of:

(1) Ceekey Traders V. General Motors (1992) 23 NSCC p, 188 and

(2) Unongo V. Aper Aku (1983)11SC p. 129 at p. 153.

It does not matter whether a Court or Tribunal decided a case correctly, if anything happened in the course of the proceedings which can give the impression that justice had not been done to any of the parties, the proceedings become vitiated. The image of the even-handed scale of justice must not be disfigured, mangled or emasculated. On this legal position, he relied on the cases of:

(1) R. V. Thames Magistrates Court, Ex P Polemis (1974) 1 WLR p. 1371 at p. 1375:

(2) R V. McCarthy (1924) 1 K.B. p. 255 at p. 259 and

(3) Sunday Okoduwa & Ors V. The State (1988) 2 NWLR p. 333 at p. 354 

In his reply under issue three, the Respondent's learned counsel reiterated that fair hearing is fundamental to the proper adjudication of disputes or any trial at all. A party to a dispute or in a criminal trial is entitled to be accorded fair hearing. The Appellant was arraigned on a three count charge of illegal entry, illegal hunting and killing of animals and unlawful possession of weapons within the Shaffini area of the Kainji Lake National Park, New Bussa. The Appellant pleaded guilty to the three counts and he was accordingly convicted and sentenced to two years imprisonment each on the first and third counts and five years imprisonment on the second count.

It was submitted for the Respondent that the Appellant was given fair hearing and was afforded every opportunity to put forward his defence. On arraignment, the charge was read to the Appellant through an interpreter, who translated the charge into Hausa, a language thoroughly understood and spoken by the Appellant. He informed the court that he understood the charge and he pleaded guilty to each of the three (3) counts thereof. It is trite that the doctrine of fair hearing entails that a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Reliance was placed on this legal principle on the cases of:

1. Kotoye V. CBN (1989)1 NWLR (Pt 98) p. 419 at p. 448 and

2. Adebayo Ogundoyin & 2 Ors. Vs David Adeyemi (2001) 7 NSCQR p. 378.

It is clear from the record of proceedings of the trial Court at pages 5 to 6 of the record of appeal that the Appellant was not convicted unheard. When he informed the Court that he did not understand English language but Hausa, an interpreter was promptly provided to translate the proceedings both to the Appellant as well as the trial Court.

The Appellant pleaded guilty to the charge brought against him. This did not admit or require further inquiry into the case. In the circumstances, the Appellant was not denied fair hearing; on the contrary, he had a fair trial.

The Appellant's learned counsel submitted that a plea of guilty is not a conclusive evidence of guilty in law. The court cannot convict solely on a plea of guilty without meeting certain statutorily and judicially stipulated conditions. Before an accused can be convicted on a plea of guilty, it must be established that he has admitted all the facts on which his charge is founded as well as guilty in respect of them. Unless the accused distinctly admits each and every fact necessary to constitute an offence, he cannot be convicted merely on his plea. Reliance was placed on the cases of:

(1) Onuoha V. Police (1956) NRNLR p. 96 and

(2) Ojetola V. Commissioner of Police (1972) 7 CCHCJ p. 29

A plea of guilty does not in anyway diminish the duty imposed on the prosecution to prove its case beyond reasonable doubt. Where the prosecution fails to do so, the accused is entitled to be discharged and acquitted, the plea of guilty not withstanding. For instance the fact that an accused pleaded guilty to an 'offence when in fact no offence was committed does not make the accused guilty in any way. On this position of the law, reference was made to the, cases of:

(1) Osie Tutu V. The State (1965) GLR p 593 and

(2) Akanbi Vs.C.O.P (1993) 1 NCR p. 266 at p. 269.

The requirements of the law before there could be a conviction on a plea of guilty are that:

i.) the court must be satisfied that the accused understands the charge against him,

ii.) The court must be seized of the facts alleged by the prosecution as constituting the offence charged;

iii.) The court must ask the accused If he admits all the facts alleged by the prosecution;

iv.) The court must be satisfied that the accused intends to admit the commission of the offence charged;

v.) the facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The learned counsel for the Appellant opined that the plea of guilty was almost extracted from the Appellant considering the circumstances under which it was made and the trial Court should not have convicted the Appellant solely on that plea. The trial Court seemed to be in a hurry to do the business of the day and this must have put an extreme pressure on the Appellant considering his status in life. On this position, he relied on the cases of:

(1) R. V. Barnes (1970) 55 Cr APP. R.P. 100 and

(2) R. Vs. Brook (1970) Cr. APP. R. p. 600

A plea of guilty is only acceptable where it is a genuine one, by a defendant who is guilty, one who understands his situation, his right, and the consequences of the plea and was neither deceived nor coerced. In the opinion of counsel, the Appellant did not understand his situation, his right, the consequences of the plea and he was coerced into making the plea.

Therefore a plea of guilty obtained in circumstances such as the instant case is bad and cannot ground a conviction. He relied on the case of: Moh. Kasim Gulam Mohideen V. Emperor (1947) Bom. p. 388 at p. 389, which was cited in the book, Sohoni's Code of Criminal Procedure, 1973 Vol. 4 at page 3297

Replying on issue four, the Respondent's learned counsel submitted that by virtue of the provisions of Section, 27(1) of the Evidence Act, a court is entitled to convict an accused person solely on a plea of guilty made by such an accused person, A plea of guilty by an accused person in a criminal trial qualifies as a confession or an admission. It has been held in a plethora of decided cases that a confession or an admission of the commission of a crime for which an accused person is tried is enough to sustain a conviction for the commission of the offence. On this legal principle, he referred to the cases of:

(l) Akibu Hassan V. The State (2001)7 NSCQR p. 107;

(2) Gozie v. The State (2003) NSCQR p. 754 at p. 808 and

(3) Uchenna Nwachukwu V. The State (2002) 11 NSCQR P. 663 at P. 686.

There is no doubt that the plea of guilty made by the Appellant before the Court below is a judicial confession or admission of the commission of the crime for which he stood trial. It is also not in doubt that his guilty plea was free, direct and voluntary and the trial Court was satisfied with the truth of it. In essence, the trial Court was right to have convicted the Appellant solely on his plea of guilty to the offence as charged without calling on the prosecution to prove its case.

The Appellant's learned counsel submitted that the trial Court was palpably in error when it relied on and allowed the statement of the Prosecutor that the Appellant had previous convictions to determine and influence the sentencing of the Appellant. He relied in this regard on the cases of:

(1) Bako Bahar V. Youri N.A. Police (1970) ANLR p. 558 at p. 559 and

(2) Yahaya V. C.O.P (1977) NNLR p. 54

Section 225 of the Evidence Act stipulates how a previous conviction can be proved where it becomes necessary. In which case, the record of proceedings in the previous trial must be produced. On this legal premise, reliance was placed on the case of: Rukuba V. C. O. (1967) NNLR. P. 114 In the instant case, no evidence of previous conviction was tendered. What is more, the proof of previous conviction only becomes necessary where the accused person casts an imputation on the character of a prosecution witness. He relied in this regard on the case of: Maizako V. Superintendent General of Police (1960) WNLR p. 188.

It was contended for the, Appellant trial there was no previous conviction against him. The prosecutor stated that, in 2000, the Appellant was arrested for a similar offence and sentenced to ten years imprisonment without an option of fine. The Appellant was supposed to be in prison till 2010. It was therefore impossible for him to have committed the offence with which he was charged in 2004. In the face of this clear contradiction, the trial Court erred in relying on it to pass on the Appellant the maximum sentence as it did.

The Appellant's learned counsel submitted that the ingredients of the offence for which the Appellant was charged ad convicted were not proved. The onus is on the prosecution to wove that the Appellant did not enter the park in accordance with the provisions of the Decree. On this position, he relied on the case of:

Martins V. State (1997) 1 NWLR (Pt.481) p. 355 at p.-357

The learned counsel for the Respondent submitted that issue five not being borne out of the record is incompetent and must be struck out. The Court below convicted the Appellant on his guilty plea and not on any statement made by the prosecutor.

In respect of issue six, the Respondent's learned counsel adopted his submissions contained in paragraphs 3.5.2 to 3.5.4 under issue four supra. Furthermore, the learned counsel for the Respondent contended that the charge preferred against the Appellant contains the ingredients of the offences with which he was charged. The Appellant pleaded guilty to the said charge as framed against him by the prosecution. The guilty plea altogether constituted the evidence upon which the trial Court convicted and sentenced him to a cumulative term of nine years imprisonment.

The law on the procedure for arraignment of an accused person, the taking of his plea and trial is trite. Section 215 of the Criminal Procedure Act provides that:

"215.- The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has been duly served therewith."

For there to be a proper and valid arraignment of an accused person and the taking of his plea in accordance with Section 215 of the Criminal Procedure Act, the following guidelines must be adhered to, that is:

(a) The accused person to be tried shall be placed before the trial court unfettered; and

(b) the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the trial court by the registrar of the court or other officer of the court; and

(c) The accused person shall then be called upon to plead instantly to the charge; and

(d) The plea of the accused person shall also be instantly recorded.

The above stated requirements of Section 215 or the Criminal Procedure Act are mandatory and not merely directory as they are preceded by the word "shall" Failure to comply with any of the requirements in a criminal trial will render the whole proceedings, that is, trial, conviction and sentence passed on an accused person, a nullity. Where therefore the plea of an accused person was defectively taken, this will amount to a violation of the statutory provisions of Section 215 of the Criminal Procedure Act. See the cases of:

(1) Eyorokoromo V. State (1979) 6 - 9 SC P 3;

(2) Kajubo V. State (1988) 1 NWLR (pt. 75) p. 721;

(3) Rufai V. State (2001) 13 NWLR (Pt. 731) p. 718 and

(4) Amala V. State (2004) 12 NWLR (pt. 888) p. 520.

Section 36 (6) (a) to (e) of the Constitution of the Federal Republic of Nigeria, 1999 provide as follows:

"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;

"

(b) Be given adequate time and facilities for the preparation of his defence;

(c) Defend himself in person or by legal practitioners of his own choice;

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and

(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence."

The above provisions of the Constitution reinforce those of Section 215 of the Criminal Procedure Act in order to guarantee the fair hearing and trial of an accused person, See the cases of:

(1) Amala V. State supra and

(2) Solola V. State supra.

It is sufficient as a whole if it could be gathered that an accused person understood the nature of the charge preferred against him and that he intended to plead either guilty or not guilty to the charge. See the case of:

Adetunji V. State (2001) 13 NWLR (Pt. 730) p. 375

It is only where the accused obviously does not understand English Language, the language of the court that the law places a burden on the court to put on record the language spoken by the accused and the fact that the charge was read over and explained to him in that language. It is therefore good practice to ask the accused the question whether he understood the charge as read and explained and to record his answers thereto,

It is very patent on the record that Hausa Language is the language of the Appellant and the charge was read and explained to him in that language. In which case it is to be presumed that everything was regularly done and that the Judge was satisfied. Of course, the Judge being in the position of a reasonable man is expected to be satisfied that the accused understood not only the charge against him but also the procedure at his trial as required by law. The law is settled that, it is sufficient as in the instant case for the record of the court to show that the charge was read over and explained to the accused and the accused pleaded to it before the case proceeded to trial.

In the instant case, after the order of the learned trial Judge granting leave to the Respondent to prefer a criminal charge against the Appellant as an accused person, he was brought before the Court. With the aid of an interpreter, the charge was read and explained to the Appellant in Hausa Language, the language, understood by him. The plea of the Appellant was then taken. He indicated that he understood the nature of the charges preferred against him and he then pleaded guilty thereto. See lines 12 to 18 at page 5 of the Record of Appeal. 

In my view, the trial Court duly discharged the legal burden placed on it in this regard. I hold accordingly that this is in complete compliance with the constitutional and procedural requirements.

The arraignment and trial of the Appellant before the trial Court was both a judicial and an official act, it was also "ex facie" and carried out in a manner which was substantially regular. The Appellant has failed to rebut this presumption by showing that he did not comprehend the procedure employed at his trial. There is nothing in the printed record indicating that he was denied legal representation. He did not indicate that he wanted to present a defence and was refused. All he did was to plead guilty to the charge preferred against him. With due respect to the learned counsel for the Appellant, his submissions that the Appellant was not given a fair hearing, denied adequate time to prepare for his defence, the opportunity of legal representation, forced into a plea of guilty and convicted without any shred of evidence are figments of his imaginations. What is more, the constitutional provision of Section 36(6) (c) that every person who is charged with a criminal offence shall be entitled to be represented by a legal practitioner of his own choice is not absolute. Such a person is equally entitled to defend himself in person. See also Section 36 (6) (d) of the 1999 Constitution.

The right to fair hearing is an extreme fundamental right in the Constitution and a breach thereof has its implication on the proceedings. Thus under Section 36(6) (a)-(e) of the 1999 Constitution, every person charged with a criminal offence is entitled to be heard. This right is inalienable and an indispensable requirement of any judicial decision. However, fair hearing is not some kind of abstract principle. It entails a trial done in accordance with the rules or natural justice. Natural justice in the broad sense is justice done in circumstances which are Just, equitable and impartial. Fair hearing is in the procedure followed in the determination of the case and not in the correctness of the decision. See the cases of:

(1) State V. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33 and

(2) Kim V. State (1992) 4NWLR (pt. 233) p.17

The Appellant did not object to non-compliance with or complain of any irregularity in the procedure at his trial. The Appellant has therefore not shown that a reasonable person who was present at the trial might have supposed that the procedure at his trial was defective to such an extent as to deny him a fair trial or occasioned a miscarriage of justice to him, See the cases of:

(1) Nwaekweghinya V. State (2005) 9 NWLR (pt. 930) p. 227

(2) Udo V. State (2005) 8 NWLR (Pt. 228) 2. 521 and

(3) Adeniyi V. State (2001) 13 NWLR (Pt. 730) p. 375.

I have the strong conviction and I hold that the fact that the Appellant was arraigned, tried, convicted and sentenced on the same day that leave was granted to prefer a charge against him without more, is neither illegal nor irregular. I can not see how any of his constitutional rights was infracted upon.

The learned counsel for the Appellant also contended that the trial Court ought to have called on the prosecution to prove by adduced evidence the charge against the Appellant.

It is a cardinal principle of criminal law that in all cases the burden of proving that any person has been guilty of a crime or wrongful act subject to certain exceptions is on the prosecution. If the commission of a crime is directly in Issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. Thus, if at the end of the whole ease, there is doubt created by the evidence given by the prosecution and the accused, the accused is entitled to an acquittal. See the cases of:

(1) Onafowokan V. State (1987) 3 NWLR (pt. 61) p. 538;

(2) Ndike V. State (1994) 8 NWLR (pt. 360) p. 33:

(3) Nasiru V. State (1999) 2 NWLR (Pt. 589) p. 87:

(4) Audu V. State (2003) 7 NWLR (pt. 820) p. 516 and

(5) Shande V. The State (2005) 12 NWLR (pt. 939) p. 301

The law however is that, after a plea of guilty by an accused in non-capital offence cases, the court must formally proceed to the conviction of the accused without calling upon the prosecution to prove the commission of the offence by establishing the burden of proof ordinarily required by law. This is because the admission of guilt on the part of the accused would have satisfied the required burden of proof. In the instant case, the Appellant's plea of guilty having been properly taken thereby making his arraignment a valid one, the learned trial Judge was right to proceed to convict and sentence the Appellant as he did. It became an absolutely unnecessary exercise for the trial Court to call for evidence to be adduced in the pursuit of establishing that the Appellant committed the offences with which he was charged. See the cases of:

(1) Dangtoe V. C.S.C. Plateau State (2001) 9 NWLR (pt. 717) p.132 and

(2) R. V. Wilson (1959) SCNLR p. 462

Having voluntarily pleaded guilty to the charge at trial, the Appellant cannot now be heard to make a different case on appeal. He can not approbate and reprobate both in the same breath, The Appellant did not deny or challenge the allegation against him, rather when the charge was read to him in Hausa Language, he pleaded guilty thereto. It is not the function of a court of justice to help any party in a case including an accused person to wriggle out therefrom. The court is an unbiased umpire.

Assuming without conceding that there was any error in the trial of the Appellant at the lower Court, it was not one that can vitiate and render null the entire proceedings. For it is only where such error is so fundamental to the trial to the extent that it has caused injustice to the accused that will necessitate the setting aside of the trial and the acquittal of the accused on appeal. See the cases of:

(1) Oje V. Babalola (1991) 4 NWLR (Pt 185) p. 267;

(2) Odukwe V. Ogunbiyi (1998) 8 NWLR (pt. 561) p. 339 and

(3) Ejeka V. State (2003) 7 NWLR (Pt 569) p, 408

In the case of: Chief of Air Staff Vs Iyen (2005) 6 NWLR (pt. 922) p. 496 at pgs 527 - 528 paras H & A-B. My Lord Ejiwunmi JSC (Rtd.) referred with approval to the earlier decision or the Supreme Court in the case of: Eyorokoromo V. State Supra; and held that:

"- - - the power of the appellate court to order a retrial where the original trial was a nullity and a review of past cases where the court had either declined to order a retrial or had ordered one, and from which the following principles were formulated: Firstly, that the very foundation of the trial, that is, the charge or information, may be null and void' secondly, the trial court may have no jurisdiction to try the offence, and thirdly, the trial may be rendered a nullity because of some serious error or blunder committed by the Judge in the course of the trial "(Underlined is mine for emphasis.)

From the circumstances of the Instant case, the Appellant has not showed how the merits of his trial had been negatively affected. He has not proved the specific act(s) of how he was denied fair hearing. Indeed, in the instant case, there is none of the three features identified in the case of: Eyorokoromo v. State supra.

On the question of the sentence passed on the Appellant by the trial Court, it is trite that this borders on the discretion of the learned trial Judge. It is an established principle of law that discretion exercised judicially and judiciously is not to be subjected to any question by another court higher in authority and jurisdiction. See the cases of:

(1) Solanke V. Ajibola (l968) 1 All NLR p. 46;

(2) Saraki V. Kotoye (1990) 4 NWLR (pt. 143) p. 144 and

(3) Royal Exchange Assurance (Nig) Ltd V. Aswani Textiles Ltd (1992) 3 NWLR (pt. 227) p 1.

I am of the view and I think I am right that the trial Court has the discretion to impose the maximum sentence of nine years imprisonment or a lesser term. The learned trial Judge decided for whatever reason to impose the maximum term. This Court has no business to tamper with such an exercise of discretion which was based on a well-known legal principle.

Based on my line of reasoning, conclusions above and the given circumstances of this case, I hold that the interest of the Appellant was neither prejudiced nor any injustice done to him at his trial before the lower Court. I therefore have no just reason to interfere with the decision of the trial Court. Issues three, four, five and six are resolved in favour of the Respondent.

In the end, this appeal lacks merit, it is hereby dismissed. The judgment of the trial Court is affirmed. The conviction and sentence of the Appellant are affirmed accordingly.

Pronouncement: (Section 249 (2) of the Constitution): Hon. Justice O. O. Adekeye who participated in the appeal before his elevation as the Presiding Justice of the Court of Appeal Ilorin Division bench agreed at a conference that the appeal be dismissed.

MARY U. PETER-ODILI, J.C.A.: I agree with the judgment and reasons of my learned brother,

O. F. OMOLEYE, JCA. I also abide by the orders she made.

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