TERHIDE PAGHER V. THE STATE
(2019)LCN/12746(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2013
CA/J/248C/2010
RATIO
CRIMINAL LAW: RETRIAL OF AN ACCUSED PERSON
“The issue of a retrial of an accused person where the case had been declared a nullity was the subject in Abodundu & Ors. V. The Queen (1959) SCNLR 162 OR 1959 4 FSC 70. Five principles were laid down in the case by the Federal Supreme Court. They are:-
(a) Whether there has been an error of law in the earlier trial;
(b) Or an irregularity in the procedure that rendered the trial a nullity;
(c) That besides the error the evidence discloses a substantial case against the accused person’s
(d) That there was no special circumstances that should render a re-trial oppressive.
(e) That to refuse a retrial would occasion a greater miscarriage of Justice.” PER JA’AFARU MIKA’ILU, J.C.A.
Justice
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
Justice
TERHIDE PAGHERAppellant(s)
AND
THE STATERespondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment):
In this case the appellant stood trial before Benue High Court sitting at Makurdi in which judgment was delivered on the 18th day of June, 2009. The appellant and two others (at large) were charged with the offences of criminal conspiracy and mischief by fire under sections 97 and 337 of the Penal Code.
The appellant was convicted on the two counts and sentenced to 5 years imprisonment and N5,000.00 fine for the offence of conspiracy and 5 years imprisonment and N5,000.00 fine for the offence of mischief by fine or two years imprisonment each. Both terms to run concurrently, The appellant being dissatisfied appealed to this Court on 5 grounds with four issues formulated for determination. On the part of the respondent two issues have been formulated for determination of the appeal.
The issues formulated for determination by the appellant read as follows:-
1. Whether or not the trial Judge was right in convicting the appellant for the offence of criminal conspiracy contrary to Section 97 of the Penal Code having regard to the proof required for such an offence. (Ground 2).
2. Whether or not the evidence of the prosecution against the appellant which was believed by the trial Court that the appellant committed the offence of mischief by fire, was based on credible evidence before the Court and not on mere suspicion (ground 3)
3. Whether or not the judgment or decision of the trial Court was reasonable and in consonance with the totality of the evidence adduced in the case (grounds).
4. Whether or not the trial, conviction and sentences passed on the appellant are a nullity in view of the failure of the trial Court to have complied strictly with the mandatory provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 187(1) and 208 of the Criminal Procedure Code (C.P.C.) grounds 4 & 5).
On the other side, the respondent has formulated two issues for determination. They read as follows:-
1. Whether the prosecution has proved the case beyond reasonable doubt as required by law.
2. Whether the provision of Section 36(6)(a) of the 2011 Amended Constitution of the Federal Republic of Nigeria and Section 187(1) and Section 208 of the Criminal Procedure Code were not complied with thereby vitiating the trial.
I think considering the issues as formulated by the appellant will suffice in determining this appeal. The first issue is whether or not the learned trial Judge was right in convicting the appellant for the offence of Criminal Conspiracy contrary to Section 97 of the Penal Code having regard to the proof required for such an offence (ground 2).
The averment of the appellant is that Section 97(1) of the Penal Code provides that “whoever is a party to criminal conspiracy to commit an offence punishable with death or with imprisonment shall, where no express provision is made in this Penal Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence…”
It is averred by him that the proof required to establish the offence of criminal conspiracy consists of the following:-
(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(ii) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
(iii) Specifically that each of the accused individually participated in the conspiracy.
It is the averment of the appellant that agreement Under Section 96 of the Penal Code can be inferred from circumstantial evidence. But then the circumstantial evidence must be such that directly links the accused with the commission of the crime which evidence must be without doubt, a credible evidence.
The appellant counsel has further averred that the unbelievable holding and findings of the trial court, as to the culpability of the appellant to criminal conspiracy is found at page 49, line 1-20. That the learned trial Judge held thus:-
“… He did that along with others whose respective identities may not have been credibly established in the evidence led by the prosecution that is not to say however that the destruction of the dwelling house in issue was not done in concert with those other persons in circumstances of Criminal Conspiracy.
The learned counsel has relied upon the case of BENJAMIN OYEKHERE v. THE STATE (2006) All FWLR (Pt. 305) 703 at 718 paragraph F-G where the Court of Appeal, relying on previous decisions in the cases of Balogun v. Police (1953) 20 NLR 148, Ligali v. Laja (1959) FSC 7, Onochie v. The Republic (1960) NWLR 307 and A. Enchoro v. The Queen (1965) 1 All NLR 125, put the meaning and the nature of the offence of Criminal Conspiracy in the following words:-
“When two or more persons agree to do or cause to be done an illegal act or an act, which is not illegal by illegal means, such an agreement is called a criminal conspiracy. The appellant counsel has opined correctly that the offence of criminal conspiracy is complete as soon as two or more persons agree to carry the intention into effect and it is open to the court to infer conspiracy from that fact of doing things towards a common end”.
Reliance is also made on the case of PATRICK IKAMS & 2 ORS. V. THE STATE (1989) 1 CLRN 1 at 22-23. The learned counsel infers:
Criminal Conspiracy from the circumstances aforesaid of this case and has not seen any good and credible reason to doubt.
The learned counsel has therefore submitted that none of the cases cited above, by the learned trial Judge and relied on by him support the evidence of the prosecution, warranting the trial court to have convicted the appellant for the offence of criminal conspiracy. That the learned trial Judge himself held as stated earlier that “He did that along with others whose respective identities may not have been credibly established in the evidence led by the prosecution…”
The learned appellant counsel maintains that if the appellant was charged with these other two persons, whose identities were not credibly established by the prosecution, they (the other persons) would have been according to our criminal jurisprudence, discharged and acquitted. He has posed a question as to whether in the circumstances the appellant would have been convicted of criminal conspiracy. He has answered the question in the negative relying on ODUNEYE v. THE STATE (2001) 2 NWLR pt. 697 page 311; GARBA v. COP (2007) 16 NWLR, Pt.1060 page 378 at 403; paragraphs E-F, 411 paragraphs F-H. Where the Court of Appeal held that “…the offence of conspiracy cannot be committed by only one person. Two or more persons must be involved. Generally where persons are charged with criminal conspiracy, as in the instant case, it is usually required that the conspiracy as laid in the charge or information should be proved, and the person charged be also proved to have been engaged in it…”
Thus at page 411 paragraph 5 Sanusi JCA stated as follows:-
“… There can therefore be no conviction on criminal conspiracy of one person alone in a trial of a single person. Even where two persons face trial on conspiracy and one is acquitted, the person left cannot be convicted of such offence…’.
The appellant counsel has reiterated that the persons named in the charge as having conspired with appellants to commit an offence, are the persons the PW1 stated at page 16 lines 20-22 of the printed record that “… I could not identify the other boys because they were ahead of the accused…” Thus the PW2 testified at page 19 lines 7-8 that “… I saw the three suspects but I could not see the faces of the first two who were in front …” That under cross-examination PW2 stated at page 19 lines 26-30 of the printed record that “… I know Tertsea Udam who lives within our neighborhood. I also know Daddy Swende. If they were around at that night and as close as the accused, I would have also recognized them…”. That PW3 stated at page 22 lines 1-2 of the record that “… I know Daddy Swende and Tertsea Udam, they live in the same area with us i.e. along the same street. They are still around …”
The learned appellant counsel has averred that these people (Tertsea Udam and Daddy Swende) whom the prosecution witness could not identify were the people charged with the appellant, as being at large, for the 1st count charge of conspiracy contrary to Section 97 of the Penal Code.
He has also, relying upon OJO v. F.R.N (2008) II NWLR, Pt. 1099 page 467 at 513 paragraphs F-G, submitted that the guilt of an accused person may be proved by:-
(a) confessional evidence;
(b) circumstantial evidence; and
(c) evidence of eye witness.
He has maintained that a witness who gave an eye evidence of how an event happened or as to how an accused person committed an offence, cannot at the same time or in the same trial adduce circumstantial evidence aimed at linking the accused with the commission of the offence. That this is not acceptable nor tolerated by our criminal jurisprudence.
The learned counsel, on this submitted that the learned trial Judge was in grave error when he found the appellant guilty of criminal conspiracy in the absence of any credible piece of evidence. The second issue is whether or not the evidence of the prosecution against the appellant which was believed by the trial court, that the appellant committed the offence of mischief by fire was based on credible evidence before the court, and not on mere suspicion from ground 3 of the grounds of appeal.
Here it is the averment of the appellant’s counsel that the incident which led to the arrest and subsequent trial and conviction of the appellant is said to have taken place at about 2.00 a.m. of 10th day of July 2006. That according to PW4 the incidence was reported to the police on the said 10/7/2006. According to PW4, the appellant was arrested the following day 11/7/2006 and he volunteered a statement to PW4 under caution.
The appellant counsel has maintained that it is strange to note the following:-
1. The statement of one James Abo who, according to PW4 lodged the report, was not attached to the proof of evidence, by the prosecution neither was he called by the prosecution as a witness.
2. The statement of the appellant was recorded by PW4 on the 12/7/2006.
3. The statements of PW1, PW2 and PW3 were allegedly recorded by PW4 on the 28/7/2006 16 days after the statement of the appellant was recorded by PW4.
4. The statement of PW4 attached to the proof of evidence was also made on the 28/7/2006 after he was directed to transfer the case to the State C.I.D. for further investigation.
5. There is no evidence of any further investigation carried out or conducted by the police.
6. There is evidence that the appellant on the 11/07/2006, attempted to attack PW1, who is the Sister of PW2 and PW3, and it was at the said incidence that the appellant was arrested by the police (PW4).
The learned appellant counsel having considered the evidence of the prosecution witnesses, which the trial judge relied on to convict the appellant counsel has averred that the account of how and when the prosecution witnesses allegedly saw the appellant at the scene of crime, is comprehensively doubtful. He has added that it is amazing that the trial judge would find such evidence credible simply because the appellant admitted owning a dress the prosecution witnesses said he has. He has averred that an accused person is presumed innocent until proved guilty.
That the burden of proof is always on the prosecution, and it does not shift, unless in certain circumstances to which this case is not among such exceptions. The learned counsel has referred to the cases of BELLO v. THE STATE (2007) 10 NWLR (Pt. 1043) page 564 at page 585 paragraph A-E; 587-588 paragraph H-B; OKORO JCA thereof at 589 paragraph B stated as follows:-
“Did the prosecution prove the three ingredients…? As the appellant was not arrested at the scene of the offence but along the road and in view of the defence of alibi set up by the appellant, the trial court ought to have been much more careful in resolving the issue as to the identity of the appellant as one of the armed robbers”.
The learned counsel for the appellant has finally submitted on this issue that the evidence of prosecution witnesses against the appellant which was believed by the trial court that the appellant committed the offence of mischief by fire was contradictory, unbelievable, unreliable and not credible to ground a conviction, as the same was merely based on a worthless suspicion.
The next issue as in the appellant’s brief of argument is whether or not the judgment or decision of the trial court was reasonable and in consonance with the totality of the evidence adduced in the case. In arguing this issue the learned counsel for the appellant has adopted all the arguments contained or proferred on issues 2 and 3. He has maintained that it is pertinent however even at the risk of repetition to bring out or state clearly the evidence of the prosecution witnesses which ought not to have been believed and acted upon, but which were believed and acted upon by the trial court. It is the averment of the learned counsel for the appellant that the evidence of the prosecution witnesses is not worthy of being believed and acted upon to ground conviction. That the trial Judge ought to have guided himself with the fact that there was previously bad blood relationship between the appellant and PW1 who is the sister of PW2 and PW3. That besides the account they each gave to the police and their evidence on oath in court as to how they recognized the appellant is totally suspect.
The next issue is whether or not the trial, conviction and sentences passed on the appellant are a nullity in view of the failure of the trial court to have complied strictly with the mandatory provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 187(1) and 208 of the Criminal Procedure Code (C.P.C.) (see grounds 4 & 5).
It should be noted that on the 29/4/2008, the application to prefer charges of conspiracy to cause mischief by fire and causing mischief by fire against the appellant and others, filed on 15/2/2008 was moved exparte and granted and the case was adjourned to 28/5/2008 for hearing. On the said 28/5/2008 the appellant was present in court and was granted bail without his plea to the charges being taken. The matter was adjourned to 17/06/2008 to enable the appellant get in touch with his counsel. On 17/6/2008 the matter was adjourned to the 3/7/2008 on the application of the appellant counsel, and without taking the plea of the appellant. On the 3/7/2008 and without taking the plea of the appellant to the charges against him, the trial court most unfortunately proceeded to hearing of the prosecution witnesses.
On the 1/4/2009, the appellant counsel made a no case submission address, which was overruled by the trial Judge and the matter was adjourned to 24/4/2009 for defence. On the 24/4/2009 the matter was adjourned to 7/5/2009 for defence. So on 7/5/2009 the appellant entered his defence. On 19/8/2009, the appellant was convicted and sentenced to five years imprisonment and N5,000.00 fine on each of the count charges to run concurrently.
It is clear that throughout the entire proceedings or trial which led to the conviction and sentence of the appellant, there is nowhere on the printed record indicated that, the charges with which the appellant stood trial, were read and explained to him and called upon to plead to the charges. This is contrary to the statement of the trial Judge, contained in his judgment, at page 42, paragraph 5 lines 1-3 thereof that the two other suspects are not before me as they are said to be at large. Upon the respective counts of charge being read for the accused he pleaded not guilty to either of them …” This statement of the trial Judge has no support from the printed record.
It has been provided by section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria that “Every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in details of the nature of the offence”.
Thus Section 187(1) of the Criminal Procedure Code has provided that “when the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged”.
The learned counsel for the appellant has correctly submitted that this provision of the constitution is a mandatory provision, which has to be complied with, in a trial of an accused person. The word ‘shall’ used in the said Section denotes mandatoriness. It therefore leaves the trial Judge with no option whatsoever. The learned trial Judge in this case has breached the mandatory provision of this section (Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Section 187(1) of the Criminal Procedure Code. Refer to the case of LATEEF ADENJI v. THE STATE (2001) 6 NSCQR 656.
It has further been submitted by the learned counsel for the appellant that the plea of an accused person to the charge with which he stands trial is a sine quanon to a valid trial and where such plea is not taken, as in this case, the trial is null abinitio. Refer to LATEEF ADENIJI v. THE STATE (Supra).
In ALADU v. THE STATE (1998) 8 NWLR (Pt.563) 618 at 633 A-H; 634 paragraphs H-H. The Court of Appeal considered the provisions of Section 215 of the Criminal Procedure Code and Section 33(6)(a) of the 1979 Constitution which are in pari material with the provisions of Section 187(1) of the Criminal Procedure Code and section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and held that “An arraignment consists of charging the accused and reading over and explaining to him in the language he understands to the satisfaction of the court followed with a plea …”.
The learned appellant counsel has therefore submitted that since the charges with which the appellant stood trial before the High Court were neither read to him nor explained to him, coupled with the failure of the trial Judge to take the plea of the appellant to the said charge against him, vitiate the entire trial, and it cannot stand.
It is provided by Section 208(1) and (2) of the Criminal Procedure Code (C.P.C.) that
“(1) any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.
(2) every such alteration or addition or new charge shall be read and explained to the accused person and his plea thereto shall be taken”.
The learned appellant counsel has therefore submitted that Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, reinforces the provisions of Section 208(2) of the C.P.C. thereby making same absolutely mandatory. Refer to the case of JOSEPH OKOSUN v. THE STATE (1979) 2 FNR 1 where the Apex Court held that
“Any amendment, no matter trifling in nature to an existing charge raises a new charge and unless a fresh plea is taken in accordance with Section 164(1) of the C.P.A., the subsequent proceedings are rendered null and void”.
The appellant counsel has submitted that even though the above cited case was decided under the C.P.A. the provision of Section 164 of the C.P.A. mutatis mudandis apply to Section 208(2) of the C.P.C. accordingly, the trial of the appellant and his conviction and sentence cannot stand. This is because after altering and/or adding to the 2nd count charge, at the stage of his judgment the names of Tertsea Udam ‘M’ and Daddy Swende ‘M (now at large), the trial judge was under a mandatory duty to read the same to the appellant, explain to him and ask him to plea to the charge, no matter how trifling the trial Judge thought was his addition or alteration, Failure to have done that renders the whole trial a nullity.
The learned appellant counsel has concluded by arguing this court to allow this appeal and set aside the judgment of the trial court, the conviction and sentences passed on the appellant.
As for the respondent two issues have been framed for determination as per the respondent’s brief of argument. They are as follows:
1. Whether the prosecution has proved the case beyond reasonable doubt as required by law.
2. Whether the provision of Section 36(6)(a) of the 2011 Amended Constitution of the Federal Republic of Nigeria and section 187(1) and 208 of the Criminal Procedure Code were not complied with thereby vitiating the trial.
Dwelling on Issue 1 M.A. Agbor of counsel for the Respondent submitted that the prosecution proved her case beyond reasonable doubt as required by law and the Judge was right in so holding. He cited ATTAH & FRIDAY v. STATE (2000) 42 NSCQR 550 at 572 and ABDULLAHI v. THE STATE (2010) 8 LRCNCC 32 at 47.
He added, that the appellant and two others at large were alleged to have conspired to do an illegal act, to wit:- Setting ablaze the dwelling house of Mr. James Abo, He defined conspiracy as an agreement between two or more persons to do an illegal Act or an act which is not illegal by illegal means, which offence is complete once the plot is formed, if nothing further is done or the parties had no opportunity to commit the offence.
Learned Counsel referred to the evidence of P.W.1, PW2 and PW3 as it relates to their seeing the appellant moving away from the scene of crime with two other boys, and the witnesses did not mince words on the identity of the person they saw that night wearing a sky blue gown as the appellant and which fact was made know to the police at the earliest opportunity.
On the contention by learned counsel for the appellant that because the other two accused persons were not tried with the appellant, his guilt cannot be established. He submitted that there is no law that provides that an accused person must be charged together with his accomplices before his guilt can be establish having regard to the fact that criminal liability is personal. AKPA v. STATE (2010) 8 LRCNCC 70 at 87.
On the alleged conflict and discrepancies in the evidence of PW1, PW2 and PW3, learned counsel submitted that inaccuracies or variances on peripheral matters are neither material or fundamental since they do not occasion miscarriage of Justice, citing AGBO v. STATE (2006) 5 LRCNCC 86 and ATTA AND FRIDAY v. STATE (2010) 42 NSCQR 550. Dwelling on proof beyond reasonable doubt, learned counsel submitted, that it does not mean proof beyond shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. He relied on MICHAEL v. STATE (2010) 8 LRCNCC 11 at 29 and AMOSHIMA v. THE STATE (2008) 6SCKR (pt. 6) 188 at 247-248. Learned Counsel further submitted that since the appellant did not make Alibi an issue in his appeal he has therefore conceded to the fact that it does not avail him and having been positively identified at the scene of crime as one of the perpetrators, his presumption of innocence is rendered otiose and the lower court was right to have convicted him as charged.
On the second issue as raised by the Respondent and similar to the appellant’s issue 4. It was submitted by learned counsel that the appellants plea was taken on the day he was arraigned in the trial Court on 28-5-2008 to which he pleaded not guilty before he was asked whether he would want to defend himself personally as engage a counsel, to which he responded that he has a counsel. Counsel added that before the appellant’s plea was taken, the charges were read and explained to his satisfaction in English language by the Court Clerk.
He further contended that the omission by the trial Judge to record these facts was an oversight and which omission did not occasion miscarriage of Justice nor mislead the accused as to the offences with which he was charged.
On the effect of a breach of Section 36(6)(a) of the 1999 Constitution and Section 187 of the Penal Code counsel referred to the case of SOLOLA v. THE STATE (2006) 5 LRCNCC 166 at 186. He argued that though on the printed records of proceedings, words were not manifest to show that the charge were read and explained to the appellant and his plea taken, there is however evidence from the judgment of the court that the charges were read to the appellant to which he pleaded not guilty and this is in compliance with Section 36(6)(a) of the 1999 Constitution and Section 187(1) of the C.P.C.
On the other hand learned counsel submitted that assuming without conceding that the plea of the accused was not taken or the charges read and explained to him. Objection to such anomaly ought to have been raised timeously at the trial court.
Consequently he argues, failure to raise such objection on time deprives the appellant the opportunity to raise it on appeal. He relied on FATUNBI v. OLANLOYE (2004) 12 FWLR (pt. 242) 496 and AKPA v. STATE (2010) 8 LRCNCC 70.
Furthermore, learned counsel submitted that, assuming without conceding that the Judge suo motu amended the charge by adding the names of the co-conspirators of the appellant on the second count of the charge, the trial court has powers under Section 208(1) of the Criminal Procedure Code. It also has the discretion to proceed immediately with the trial as if the charge so raised had been the original charge. If in the opinion of the court the accused will not be prejudiced in his defence and the prosecution will also not be prejudiced. Learned Counsel then urge this court to hold that there was due compliance with the procedure for fair trial and valid arraignment as required by law moreso that the appellant fully participated in the whole trial.
After careful examination of the issues raised by the appellant, I find it necessary to resolve issue 4 first considering the nature of the complaint raised therein. Since respondent’s issue 2 is similar same will be taken together.
Appellant’s counsel observed that the arraignment procedure of the appellant before the lower court did not comply with the provisions of section 36(6)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution) and Section 187(1) and 208 of the Criminal Procedure Code (hereinafter referred to as the C.P.C).
Section 36(6)(a) and (b) of the 1999 Constitution provides thus:
“Every person who is charged with a criminal offence shall be entitled to.
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) to be given adequate time and facilities for the preparation of his defence”.
When an accused person is arraigned in court, the first thing to do therefore is to inform him promptly of the nature of the offence in a language he understands.
Section 187(1) of the C.P.C. provides as follows:-
“Section 187(1) when the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged”
The first step to take upon arraignment is to read the charge to the accused person and take his plea. In this case the above provisions seemed to have been breached. It is pertinent to reproduce the record of commencement of proceedings, and arraignment of the appellant before the lower court on 28th May 2008. The proceeding is as follows:
“28-05-2008
The State: J.A. Tyoyer Esq. SC is for the State Accused present and speak English not represented by counsel.
Mr. Tyoyer: the case for the plea of the accused person.
Accused: I have a counsel. It was my elder that engaged him for me. I do not know his name but my brother knows.
Mr. Tyoyer: I do not oppose the bail for the accused.
Order: This matter is further adjourned to 17-6-2008 to enable the accused person get in touch with his counsel. The accused is granted bail in the sum of N100,000.00 with one surety in the like sum”.
The Proceedings of 17-6-2008 is reproduced thus:
“17-6-2008
The State: J.A. Tyoyer Esq., SC for prosecution.
ACCUSED: Present and speak English.
P.K. Terkwagh Esq. is for the accused.
Mr. Tyoyer: I am ready with three witnesses.
Terkwagh: the proof of evidence has only just been Served on one on the open court. I seek adjournment to acquaint myself with the facts.
Mr. Tyoyer: No objection.
Order: adjourned to 3-7-2008 bail extended”
The above record shows beyond doubt that the proceedings did not commence with reading and explaining the charge to the appellant and taking his plea which must be recorded in the words written by the appellant. The appellant was not recorded at all much less his utterances showing he understood the charge and his plea to it. As shown in the proceedings of 29-04-2008, 28-05-2008, 17-06-2008 and 03-07-2008 the application to proffer charges of conspiracy to cause mischief and causing mischief by fire was granted. On the next hearing date the appellant was granted bail but no plea was taken because appellant was not represented by counsel. Another adjournment was taken but no plea was recorded. On 03-07-2008 without taking the plea of the appellant to the charge against him, the trial court proceeded to the hearing of the prosecution witnesses. Respondent’s counsel admitted in the brief of argument that the learned trial judge omitted to record the plea but that it did not occasion any miscarriage of Justice.
Although, the learned trial judge in his judgment appearing on page 42 of the record remarked that the charges were read to the accused and he pleaded not guilty to same that would not satisfy the mandatory requirement since the record did not show that his plea was earlier taken by the court.
The Supreme Court in OGUINYE v. STATE (1999) 5 NWLR (Pt. 604) 548 at 565 paragraphs E-A per IGUH, JSC captured the requirements of a valid arraignment in court as follows:-
“For there to be a valid arraignment of an accused person, the following three essential requirements must be satisfied to wit:
(a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order;
(b) The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court, and
(c) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has infact not been clearly served therewith. The above stated requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. Since these requirement have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial failure to satisfy any of them will render the whole trial incurably defective and null and void.
In this case the requirements of the law were followed by the trial court” See also Kajubo v. State (1998) 1 NWLR Pt. 73) 721, Ekekunare v. State (1993) NWLR (Pt.294) 385, Kalu v. State (1998) 13 NWLR Pt.583) 531, Okoro v. State (1998) 14 NWLR (pt.584) 186.
The proceedings before the lower court have not shown the appellant’s plea. Mere mention in the judgment that the plea of the accused was taken is not enough. It must be recorded by the court. The failure of the court below to record the accused’s plea render’s the procedure inconsistent with Section 36(6)(a) and (b) of the Constitution and Section 187(1) of the Criminal Procedure Code. In Idemudia v. State (1999) 7 NWLR (Pt.619) 202, the Supreme Court per Karibi-Whyte, JSC at page 221 paragraph A-C observed thus:
“an arraignment consist of charging the accused or reading over the charge to him and taking his plea therein. A valid arraignment therefore presupposes compliance with the enabling constitutional and procedural provisions and a strict compliance therewith is demanded by the court” See also Sani v. The State (2000) 1 NWLR (Pt. 642) 511.
Apart from absence of the plea, appellant’s counsel rightly observed that the second count charge appearing on page 42 of the record contained additional two names of accused persons. There is nothing in the record to show that
Section 208(1) and (2) of the C.P.C. was complied with. Section 208(1) and (2) provides thus:-
1. Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.
2. Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.
The law is settled that once information or charge is altered or amended the plea of accused must be taken again. See Young Ukauwa Uguru v. The State (2002) 9 NWLR (Pt 771) 90 and Joseph Okosun v. The State (1979) 2 FWLR 1.
The respondent contended that the failure to raise objection timeously deprives the appellant the opportunity to raise it on appeal. While it is true that the most appropriate time to take objection to the plea of the accused person which is in contravention of the Constitutional and procedural provisions is before trial, this does not preclude taking objection, thereafter. See Kajubo v. State (1988) 1 NWLR (pt. 73) 721 and Eyorokoromo v. State (1979) 6-9 SC 3. The argument of respondents counsel cannot therefore hold water.
The plea of an accused person to the charge where with he stands trial is a sine quanon to a valid trial. It is very fundamental aspect of any criminal proceedings and that underscores the strict and mandatory compliance in matters relating thereto. Thus criminal trial, no matter how well conducted, without plea of the accused person first and properly taken is a nullity. In the instant case the absence of the plea of the appellant to the said charge against him, vitiates the entire trial and renders same a nullity and I so hold. Issue 4 is therefore resolved in favour of the appellant.
Having resolved issue 4 in favour of appellant, It would amount to mere academic exercise to resolve the remaining issues 1-3 formulated by the appellant. Issue 4 has disposed of the entire appeal.
The next issue to be considered is whether the accused person should be put on trial again. The issue of a retrial of an accused person where the case had been declared a nullity was the subject in Abodundu & Ors. V. The Queen (1959) SCNLR 162 OR 1959 4 FSC 70. Five principles were laid down in the case by the Federal Supreme Court.
They are:-
(a) Whether there has been an error of law in the earlier trial;
(b) Or an irregularity in the procedure that rendered the trial a nullity;
(c) That besides the error the evidence discloses a substantial case against the accused person’s
(d) That there was no special circumstances that should render a re-trial oppressive.
(e) That to refuse a retrial would occasion a greater miscarriage of Justice.
The Learned Justice of the Supreme Court held that all the factors must co-exist, so that a case may be sent for a retrial. See Abu Ankwa v. The State (1969) 1 All NLR 133. In the instant case, the irregularity in the procedure rendered the trial a nullity. It is evident that special circumstances exist to render a re-trial oppressive. Appellant was convicted and sentenced to five years imprisonment and fine of N5, 000.00 or 2 yrs imprisonment for failure to pay same. Appellant was convicted since 2009; Going by the record appellant has now served at least three years out of the five years imposed on him. In my humble view having regard to the circumstances, to order a re-trial would occasion a greater miscarriage of Justice.
Consequently, I hold that the appeal succeeds and is allowed. The null judgment entered by the lower court on 28th June, 2009 by Hon. Justice A.O. Onum is hereby set aside. The conviction and sentence accordingly quashed. Appellant discharged and acquitted.
ADZIRA GANA MSHELIA, J.C.A.: I have had the opportunity of reading in draft the lead reasons for judgment given by my learned brother Mika’ilu J.C.A. I agree with his reasoning and I adopt the reasons he gave as my reasons for allowing the appeal. I abide by all the consequential orders contained in the lead judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Ja’afaru Mika’Ilu JCA. I am in total agreement with the reasoning and conclusion therein.
By virtue of section 187 (1) and 208 (1) of the criminal procedure code, a valid arraignment of an accused person would consist of the following:-
(a) That the accused person who is to be tried should be physically present before the trial court unfettered.
(b) The charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the Trial Judge.
(c) The accused shall then be called upon to plead instantly to the charge; and
(d) The plea of the accused shall be instantly recorded by the judge.
The above requirements must co-exist and failure to comply with them will render the whole trial a nullity.
The mandatory nature of the above requirements is further confirmed by the provisions of section 36 (6) (a) of the constitution of the federal republic of Nigeria 1999 as amended. See OKEKE V. STATE (2003) 15 NWLR (PT 842) 25: SOLOLA V. THE STATE (2005) 11 NWLR (PT 937) 460: AMALA V. THE STATE (2004) 12 NWLR (PT 888) 520 and DIBIE V. THE STATE (2007) 9 NWLR (PT 1038) 30.
Consequently non compliance with the requirements aforementioned will warrant an order of retrial as the whole trial will be vitiated and rendered a nullity. Where however such order of retrial will work in Justice on the convict, such as in cases of custodian sentence where a substantial part of the term imposed have been served, an appellate court may in the circumstance make an order of acquittal.
In the instant case, the appellant who was sentenced to a term of five years imprisonment plus a fine of N5000 has served out more than three years before the conclusion of his appeal. To order a retrial will definitely amount to a miscarriage of Justice.
I too allow this appeal and I abide by the order made in the lead judgment.
Appearances
B.I. WAYO Esq., with R.K. Amayange Esq. and C.C. Asuba Esq.For Appellant
M.A. Agbor Esq., (D.D.P.P. Ministry of Justice Benue State)For Respondent
