FREGENE v. STATE
(2020)LCN/14467(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, July 24, 2020
CA/B/364C/2012
Before Our Lordships:
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
ANTHONY FREGENE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT UNTIL A PLEA OF NOT GUILTY OF AN ACCUSED PERSON IS TAKEN, HE HAS NOT PUT HIMSELF UPON HIS TRIAL
But one can hardly blame the State, for the records of that Court before us do not suggest that the provisions of Section 215 of the Criminal Procedure Law of Bendel State applicable to Edo State stating that “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 to 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 not duly served therewith” was complied with by the lower Court. In fact Section 217 of the same Law goes on to say that:
Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial. (Italics mine)
The effect of these two provisions, particularly the italicized portion of Section 217, is that until the plea of not guilty of an accused person is taken in accordance with Section 215, he has not put himself upon his trial, with the result that any proceedings conducted thereafter is a nullity and the question of a subsequent defence does not arise: see Andrew Idemudia v. The State (1999) LPELR-1418 (SC) p. 33-34; (1999) 7 NWLR (PT 610) 202; Eyorokoromo v. The State (1979) 6-9 S.C. 3; Kajubo v. The State (1988) 1 NWLR (PT 73) 721 S.C. 3.
Yes, the trial Court in its judgment in this case said that the charge was read to the appellant in English Language and he pleaded not guilty to each of the two counts, but that assertion cannot by any means make up for such an important issue as the records themselves attesting to the fact that the said plea was indeed taken (see Ecobank (Nig.) Plc v. Kunle (2019) 10 NWLR (PT 1979) 90 @ 109-110). That is even more so in a case like this one where the prosecution does not also try even the least bit to defend that assertion of the Court. I therefore have no option than to agree with appellant that his plea was not taken before his trial. PER UGO, J.C.A.
DEFINITION OF A “RETRIAL”
In any case, the settled position of the law as stated in Abodundu & Ors v. The Queen (1959) 4 F.S.C. 70 @ 73 and followed in subsequent cases including Eyorokoromo v. The State (1979) 6-9 S.C. 3; Kajubo v. The State (1988) 1 NWLR (PT 73) 721 S.C. 3, and even very recently in Mohammed v. The State (2019) 14 NWLR (PT 1693) 487, Bude v. State (2016) 12 NWLR (PT 1525) 154 is that retrial is the proper order where the Court comes to the conclusion that the trial was a nullity. In Abodundu it was said that a retrial is the proper order where among others:
“(a) there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court is unable to say that there has been no miscarriage of justice; (b) that leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no special circumstances as would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal are not trivial; and (e) that to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.”PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State of 28/09/2001 convicting the appellant of conspiracy to commit armed robbery and actual commission of armed robbery. Appellant was sentenced to death upon his conviction.
The case of the prosecution was that appellant along with other persons who the police could not arrest and so did not charge with him conspired to rob and did rob the home of one Paul Edafe (P.W.2) and his family on 17/8/1997 at Edafe Avenue, Sapele Road, Benin City in the course of which appellant and his comrades were said to have been not only armed but even fired gun shots and stole valuable items including money of the Edafes. The prosecution alleged that the following day appellant was caught by one Victor Ediae (P.W.4) at the gate of the Edafes and, upon interrogation, confessed that he was one of five armed robbers that robbed the Edafes the previous night and he was there to look for his wristwatch which he lost in the course of the robbery operation. P.W.4 thereupon raised alarm which attracted neighbours before who appellant repeated his
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confession. Because Mr Ediafe (P.W.2) was not around, it was his brother P.W.5 who there and then reported the matter to the police who went and arrested appellant at the scene and later obtained from him a confessional statement which was tendered in evidence as Exhibit A.
Testifying alone in his defence, appellant admitted that he was arrested near P.W.2’s house but denied having anything to do with the robbery in question. He said he was a bus conductor and was only returning from answering the call of nature in a bush near the house of the Edafes when P.W.4 accosted him and told him about the robbery of the Edafes the previous evening. He said he denied it and never confessed to P.W.4 and 5 or anybody for that matter including the police that he was one of the robbers that robbed P.W.2. He also denied having anything to do with the wristwatch in question or telling P.W.4 that he was around P.W.2’s house to look for a wristwatch.
In its judgment of 28/9/2001, the lower Court discountenanced Exhibit A of appellant on the ground only that it contained confessions by appellant to other crimes and so likely to prejudice his mind. It
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nevertheless went on to rely on and believe the other evidence before him, including appellant’s said oral confession to P.W.4 and 5, and convicted appellant as charged. Appellant is dissatisfied with that decision hence this appeal.
He initially founded his appeal on only the omnibus ground that the judgment could not be supported having regard to the evidence but later obtained leave of Court and filed an amended eight-ground Notice and Grounds of Appeal on 31/3/17, from which he formulated the following two issues for determination:
1. Whether his trial, conviction and sentence to death in charge No RFT/B/15/99 by the trial High Court of Edo State was not a nullity.
2. Whether the prosecution proved its two-count charge of conspiracy to commit armed robbery and armed robbery contained in Charge No. RFT/B/15/99 beyond reasonable doubt.
The State on its part took the view that only one issue arose for determination, namely, whether it proved its case against appellant beyond reasonable doubt.
Arguing his first issue through his counsel A.N.A. Igbinovia, appellant submitted that though the trial judge in his judgment said the
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charges were read and explained to him in English Language and he pleaded not guilty to them, that fact is not borne out by the records. Proper arraignment by Section 215 of the Criminal Procedure Law Cap 49 of Bendel State applicable to Edo State he submitted consists in the accused person being put in the dock, the charge(s) read and explained to him in a Language that he understands and the Court indicating in its records that he understood it to its satisfaction and the Court instantly requesting the accused person to plead to the charge as laid and read.
The arraignment so factually recorded by the trial judge, he submitted, must be visible in the records (for which he called in aid the cases of Josiah v. The State (1985) 1 NWLR (PT 1) 125, Kajubo v. The State (1988) 1 NWLR (PT 73) 721), but that was not the case here. The lower Court, he thus argued, misdirected itself by finding that there was arraignment when in fact its records do not show such. He referred us to Section 217 of the same Criminal Procedure Law Cap 49 of Bendel State stating that “Every person by pleading generally the plea of not guilty shall without further form be deemed
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to have put himself on his trial.”
Citing Eyorokoromo v. The State (1979) 3 LRN 251 @ 252, (1979) 6-7 S.C. 3 @ 11,12; Erekanure v. The State (1988) 1 NWLR (PT 73) 721 and Madukolu v. Nkemdilim (1962) 1 ALL NLR (PT IV) 587, counsel argued that proper arraignment is condition precedent to exercise of jurisdiction and the failure by the trial Court to fulfill it denied it of jurisdiction over him and rendered his trial void ab initio. For that reason he prayed us to quash and set aside his conviction and sentence.
On issue 2, appellant took us through the evidence that was adduced by the prosecution at the lower Court and submitted that it did not prove its case against him beyond reasonable doubt so the lower Court ought to have acquitted and discharged him and not convict him as it did.
On the appropriate order to be made if we agree with him, Mr Igbinovia on appellant’s behalf argued that in the circumstances it is one discharging and acquitting appellant and not retrial. That is even as counsel cited to us dicta from the decision of the Federal Supreme Court in Abodundun & Ors v. The Queen (1959) 4 F.S.C. 70 @ 73 which states
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the contrary.
The State did not utter even a word on the fundamental complaint of appellant regarding the absence of his arraignment by the trial Court; it rather chose to concentrate all its fire power on whether it proved its case against appellant in the lower Court in the impugned trial and submitted that it so did so the trial judge was correct in its decision convicting appellant.
There is no doubt that the first complaint of appellant concerning his non-arraignment, which the State did not address, touches on the very foundation of the validity of the proceeding before the lower Court, for if there was no proper arraignment of appellant by the lower Court by taking his plea on the charges as the State seems to concede with its silence (Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296, Nwankwo v. Yar’ Adua (2010) 3 SCNJ (PT 1) 244 @ 265), the trial becomes a nullity.
But one can hardly blame the State, for the records of that Court before us do not suggest that the provisions of Section 215 of the Criminal Procedure Law of Bendel State applicable to Edo State stating that “The person to be tried upon any charge or information shall
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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 to 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 not duly served therewith” was complied with by the lower Court. In fact Section 217 of the same Law goes on to say that:
Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial. (Italics mine)
The effect of these two provisions, particularly the italicized portion of Section 217, is that until the plea of not guilty of an accused person is taken in accordance with Section 215, he has not put himself upon his trial, with the result that any proceedings conducted thereafter is a nullity and the question of a subsequent defence does not arise: see Andrew Idemudia v. The State (1999) LPELR-1418 (SC) p. 33-34; (1999) 7 NWLR (PT
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610) 202; Eyorokoromo v. The State (1979) 6-9 S.C. 3; Kajubo v. The State (1988) 1 NWLR (PT 73) 721 S.C. 3.
Yes, the trial Court in its judgment in this case said that the charge was read to the appellant in English Language and he pleaded not guilty to each of the two counts, but that assertion cannot by any means make up for such an important issue as the records themselves attesting to the fact that the said plea was indeed taken (see Ecobank (Nig.) Plc v. Kunle (2019) 10 NWLR (PT 1979) 90 @ 109-110). That is even more so in a case like this one where the prosecution does not also try even the least bit to defend that assertion of the Court. I therefore have no option than to agree with appellant that his plea was not taken before his trial.
The effect of that is that his purported trial is a nullity. That being the case, it can hardly be argued as was done by Mr. Igbinovia for appellant that appellant should be discharged and acquitted, which in the first place contradicts counsel’s other contention that appellant’s trial was a nullity by reason of the failure of arraignment of appellant. In fact counsel’s argument suggests
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the logical impossibility of placing something on nothing.
In any case, the settled position of the law as stated in Abodundu & Ors v. The Queen (1959) 4 F.S.C. 70 @ 73 and followed in subsequent cases including Eyorokoromo v. The State (1979) 6-9 S.C. 3; Kajubo v. The State (1988) 1 NWLR (PT 73) 721 S.C. 3, and even very recently in Mohammed v. The State (2019) 14 NWLR (PT 1693) 487, Bude v. State (2016) 12 NWLR (PT 1525) 154 is that retrial is the proper order where the Court comes to the conclusion that the trial was a nullity. In Abodundu it was said that a retrial is the proper order where among others:
“(a) there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court is unable to say that there has been no miscarriage of justice; (b) that leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no special circumstances as would render it oppressive to put the appellant on trial a second
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time; (d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal are not trivial; and (e) that to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it.”
Since the identified flaw in the lower Court’s proceeding is to render the trial a nullity, issues “b-e’ above do not even arise. At any rate the offence for which appellant was charged (armed robbery) is a very serious one that attracts capital punishment upon conviction, just as the evidence against appellant also seems weighty and even includes a confessional statement.
The result of all the foregoing is that the appeal is allowed, the conviction of the appellant is quashed and his sentence set aside; in their place, it is hereby ordered that appellant’s case be and is here remitted to the High Court of Edo State for trial/retrial before another Judge of that Court.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother B.M. UGO, JCA.
I agree with the reasoning and
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conclusion that the appeal be allowed. I also allow the appeal. It is hereby ordered that the case be remitted to the High Court of Edo State for trial/retrial before another Judge of that Court.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of my learned Brother, BOLOUKOROMO MOSES UGO, JCA just delivered and I agreement with the reasons and conclusions in allowing the as meritorious. I subscribe to the consequential orders.
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Appearances:
A.N. Igbinovia, Esq., with him, Miss P.U. Abu For Appellant(s)
E.S. Okuonghae, Esq. Senior State Counsel, Edo State Ministry of Justice For Respondent(s)
