FEDERAL REPUBLIC OF NIGERIA v. AKEEM OGUNROMBI
In The Supreme Court of Nigeria
On Friday, the 18th day of January, 2019
SC.766/2015
RATIO
INTERPRETATION OF THE PROVISIONS OF SECTION 215 OF THE CRIMINAL PROCEDURE ACT AS REGARDS THE CONDITIONS THAT MUST BE COMPLIED WITH IN ORDER TO HAVE A VALID ARRAIGNMENT; POSITION OF THE LAW WHERE A TRIAL COURT FAILS TO ADHERE STRICTLY TO THE PROVISIONS OF SECTION 215 OF THE CRIMINAL PROCEDURE ACT AND THE SECTION 36 (6) (A) & (B) OF THE 1999 CONSTITUTION
It must be stated that for there to be a valid arraignment, compliance must be had to the provisions of Section 215 of the Criminal Procedure Act. In other words, there must be strict compliance with those provisions, in order to have a valid arraignment. In multiplicity of decided authorities, this Court had laid down some guiding principles of a valid arraignment of an accused persons as provided by Section 215 of CPA. Some of these principles include the followings:- (1) That the person tried shall be placed before the Court unfettered. (2) The charge or information shall be read and explained to him to the satisfaction of the Court by the registrar or other officer of the Court. (3) Such person shall be called upon to plead instantly thereto. See Akpiri Ewe vs State (1992) NWLR (pt.246)147; OLABODE VS THE STATE (2009) 11 NWLR (pt.1152)254; KAJOLA V COP (1973) 9 -10 SC (REPRINT) 24; DIBIE & ORS V THE STATE (2007) 9 NWLR (pt.1038)30 or (2007)3 SC (pt.1)176; KAJUBO vs THE STATE (1988)SC 1 NWLR (pt.73) 721. A valid arraignment should therefore entail that it must be conducted in open Court and shall involve the reading of the charge or information or indictment to the accused person or stating to him the substance of the offence or charge to the satisfaction of the Court before taking his plea. See Oyediran vs The Republic (1967) NMLR 122. All these processes are mandatory and not directory. Section 215 of CPA must therefore, be strictly complied with. That provision is even further supported by the provisions of Section 36 (6) of the 1999 Constitution (as amended) which provides as follow:- “Every person who is charged with a criminal offence shall be entitled (a) to be informed promptly in the language he understands and the details of the nature of the offence”. These constitutional provisions are mandatory and therefore must be strictly complied with. This is so, Because strict compliance with mandatory requirements relating to proceedings to be followed in criminal trial, is a pre-condition or pre-requisites of a valid trial. Where a trial Court fails to adhere strictly to a statutory procedure in criminal matter, for instance, as in this instant case, with the provision of Section 215 of CPA or Section 36 (6) of the 1999 Constitution, such trial is a nullity and therefore must be so declared. See EYOROKOROMO v THE STATE (1979) 6-9 SS C3; JOSIAH v THE STATE (1985)1 SC 406. In the present case, considering the charge on which the appellant was arraigned before the trial Court, it can be noted that the Court did not comply with the provisions of Section 215 of CPA and Section 36 (6) (a) & (b) of the 1999 Constitution. The charge was not read and explained to him even if he really understood the language of the Court. The charge he faced trial was that he dealt with substance or weeds confirmed to be Indian Hemp and when read to him, the record clearly shows that he said he consumed it. That reply by the accused prompted the prosecuting counsel to apply to amend the charge in line with what the respondent pleaded or wanted to plead. But unfortunately, the learned trial Judge jumped in and ordered that there was ‘no amendment to be made’. The trial Judge simply recorded plea of “guilty” and proceeded to convict him. That clearly shows that the charge was not properly read and explained to him because what he was charged of committing was different from what he said he committed. Even at that, in the course of the proceedings, when the weeds were tendered the accused/respondent seemed to have objected on the identity of the drug of substance because he said the one tendered by the prosecution was not his own substance or and that his own substance was in a different container but the trial Court simply glossed over that aspect of his objection and proceeded to convict him. ?I must reiterate that a close and dispassionate look at the procedure adopted by the learned trial Judge is in total non-compliance with the provisions of Section 215 of CPA and Section 36 (6) (a) & (c) of the 1999 Constitution and is also a total neglect of all the principles guiding arraignment of accused person in Court. As I stated supra, those guiding principles are mandatory and not directory and must be strictly complied with in criminal proceedings. The learned trial Judge in this instant case, threw them overboard and therefore such neglect or non-compliance rendered the whole proceeding a nullity. It is sequel to that that I am in entire agreement with the lower Court when in its judgment it stated as follows:- “Because the arraignment and subsequent trial of the appellant are vitiated by a fundamental vice and failure to strictly observe significant steps (sic) in the conduct of a proper criminal trial, the entire proceedings remain a nullity and liable accordingly being set aside (sic)” Thus, I am in entire agreement with the above finding or remarks by the lower Court. PER AMIRU SANUSI, J.S.C.
BURDEN OF PROOF PLACED ON THE PROSECUTION IN CRIMINAL CASES
It is trite that the prosecution bears the burden of proving beyond reasonable doubt the guilt of the accused based on the averments in the charge. PER EJEMBI EKO, J.S.C.
CONSEQUENCE OF THE FAILURE TO PROVIDE AN ACCUSED PERSON WITH AN INTERPRETER WHERE HE DID NOT UNDERSTAND THE LINGUA FRANCA OF THE TRIAL COURT
Throughout the proceedings at the trial Court it was not anywhere recorded that the Court, in its overzealousness, availed the accused person free interpretation, a right he enjoys under Section 36 (6) (a) of the Constitution, if he did not understand the lingua franca of the trial Court. The proceedings culminating in the 15 years imprisonment imposed on the accused was nothing but a charade, a mere pretension to fair trial, which in actuality was a classical case of unfair trial. The lower Court was thus right in reversing the purported conviction and sentence imposed on the accused person. PER EJEMBI EKO, J.S.C.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
Between
FEDERAL REPUBLIC OF NIGERIA Appellant(s)
AND
AKEEM OGUNROMBI Respondent(s)
AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ibadan division (the lower or Court below) delivered on the 10th of December, 2004 which allowed the appeal of the respondent and set aside the conviction and sentence of the respondent by the Federal High Court, Abeokuta (“the trial Court”) vide the latter’s judgment delivered on 27th June, 2012. The respondent herein as an accused person, was arraigned before the trial Court on a charge which is set out below:-
“That you AKEEM OGUNROMBI (M) on or about the 12th day of October, 2010 at lyesi Street, Osi Ota Sanyo Ota, Ogun State, within the jurisdiction of the Honourable Court without lawful authority dealt in 100 grammes of Indian Hemp otherwise known as cannabis sativa, a narcotic drug similar to cocaine, Heroin, and LSD and you thereby committed an offence contrary to and punishable Section 11C of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004”.
When arraigned before the trial Court on 23rd of May, 2012 and as borne out from page 4 of the printed record of proceedings, it was
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shown that the charge was read to the accused person now respondent and the trial Court recorded that he pleaded guilty of consuming the drug and not dealing with it. On that backdrop the prosecuting counsel one Mrs. O.A. Ogar applied to amend the charge but the trial Court quickly jumped and ruled that no charge would be amended and thereupon ordered the prosecuting counsel to review his case and ordered that he should proceed with the case. The learned prosecution counsel thereupon called his two witnesses and tendered some exhibits. Upon concluding with his two witnesses the trial Court made some observations and comments on the charge and the evidence adduced by the prosecution in proof of the charge and it ultimately ask the accused to present his allocutus remarks before the learned trial judge finally convicted the respondent and sentenced him to 15 years imprisonment.
Piqued by the judgment of trial Court, the respondent appealed to the lower Court, which allowed his appeal and set aside the conviction and sentence passed on the respondent by the trial Court, apparently due to, inter alia, the failure of the trial Court to provide an interpreter
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throughout the proceedings. It is worthy of note that throughout the proceedings the respondent was not represented by counsel.
Miffed by the decision of the lower Court in discharging and acquitting the respondent, the appellant has now appealed to this Court vide a notice of appeal dated 10th August, 2016 containing two grounds of appeal.
Parties filed and exchanged briefs of argument in keeping with the rule and practice of this Court. The appellant filed an Amended Appellants Brief of argument on 7th March, 2018 which was deemed filed on 18th October, 2018 and which said Amended Appellant’s brief was settled by one Segun Ololade. In the said Amended Appellant’s brief the appellant raised a lone issue for determination which he couched as below: –
“Whether the learned Justices of the Court of Appeal erred in law when they held that the arraignment of the respondent fell far below the position of the law.”
On his part, the learned counsel for the respondent filed his brief on 5th May, 2017 which was also deemed filed on 18/10/18 and was settled by Mrs. L. Omolola Ikwuegu Ayodele Adeyemo. She also decoded a lone issue for determination
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which reads as follows: –
“whether the trial of the respondent is not a nullity for breach of the mandatory provisions of Section 215 of the Criminal Procedure Act and Section 36 (6) (a) & (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Grounds 1 & 2).
SUBMISSIONS BY LEARNED COUNSEL TO THE PARTIES ON THE SOLE ISSUE FOR DETERMINATION
In arguing this appeal, the learned counsel to the appellant distilled one issue for determination out of the two grounds of appeal. The issue borders on the procedure adopted in arraignment of the respondent. The learned counsel to the appellant argued that the respondent was properly arraigned and that his plea was taken after the charge was read and explained to him to the satisfaction of the Court. He argued that the trial Court did not breach the respondent’s fundamental right to fair hearing as the Court acted in accordance with the letters and spirit of the provision of Section 215 CPA. He submitted further that unless it appeared clearly from the records that accused did not understand the language used at his trial and that interpretation for the benefit of the accused was
4
refused, all acts are presumed to have been legitimately done until the contrary is established, He cited the case of NWACHUKWU v STATE (2007)17 NWLR (pt.1062) page 31. He argued the plea was valid and proper as the respondent did not raise any objection before he made his plea. He urged the Court to resolve this issue in favour of the appellant and allow the appeal.
In response to the argument of the learned appellant’s counsel, the learned counsel to the respondent also formulated a sole issue for determination. The issue reads whether the trial of the respondent is not a nullity for breach of provision of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution.
The learned counsel to the respondent again submitted that the entire trial of the respondent before the trial Court is a nullity due to the apparent failure of the Court to provide an interpreter to the respondent. He referred to the judgment of the Court below at page 81 of the record. He also argued the evidence of PW1 at the proceedings of 23rd May, 2012 clearly shows that the only language understood by the respondent, is Yoruba language. He submitted
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that before a Court can be said to be satisfied with reading and explanation of a charge to an accused person, such an accused person must be informed in the language he understood in detail of the nature of the offence. He argued that the emphasis is not whether a Court is satisfied that the charge has been read and explained to the accused person, but that the evidence that the accused person understand the details of the nature of the offence. He argued that it is the duty of the Court to ensure strict compliance with Section 215 CPA and Section 36 (6) (a) of the 1999 Constitution (as amended) by reflecting such compliance in its record. He cited the case of Effiong v State (1995)1 NWLR (pt.373) page 507 (quotation at page 9 of the respondents brief). He argued that the trial Court ought to have ensured strict compliance with those provisions, as the respondent was not represented by counsel before the trial Court. He argued that presumption regularly under Section 168 Evidence Act could not apply to the instant case and that even if it is conceded that the presumption applies, it had been rebutted by the evidence of PW1 before the trial Court.
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He submitted further that the requirement to comply with the provision of Sections 215 of CPA and 36 (6) of 1999 Constitution is more rigid where the accused person does not speak English. He cited the case of DURWODE V THE STATE (2000)15 NWLR (pt.691)476. He urged the Court to affirm the decision of the Court below and dismiss the appeal.
As it relates to “arraignment” it is apposite to reproduce at the trial Court, below all that had transpired at the trial Court, which in fact is the gravamen of the sole issue raised and canvassed by both learned counsel in this appeal. It is clearly shown that when the accused/respondent was arraigned before the trial Court on 23rd May, 2012 the proceeding of that day went on as reproduced below. The excerpt of the proceeding of that day as shown on page 4 of the record of proceedings will be referred to here. The proceedings read thus:-
“FEDERAL REPUBLIC OF NIGERIA
AND
AKEEM OGUNROMBI
Case called
O.A. Ogar: appears for the complaint
Accused person in Court.
Ogar:- matter is for arraignment. I apply that charge be read over to Accused person in order the plea be taken (sic)<br< p=””
</br<
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Court:- Charge read Accused person pleads guilty to consuming the drug. Not dealing
Ogar:- I wish to amend the charge
Court:- No charge will not be amend. Review your case and let us know whether the exhibit is the accused persons “weeds”
After what transpired above, the prosecutor proceeded to call his witnesses and tendered the relevant exhibits which were all admitted in evidence. Thereafter, the trial Court convicted the respondent after taking his allocutus and sentenced him to 15 years imprisonment. The question that remains to be answered is Was the accused properly arraigned before the trial Court
It must be stated that for there to be a valid arraignment, compliance must be had to the provisions of Section 215 of the Criminal Procedure Act. In other words, there must be strict compliance with those provisions, in order to have a valid arraignment. In multiplicity of decided authorities, this Court had laid down some guiding principles of a valid arraignment of an accused persons as provided by Section 215 of CPA. Some of these principles include the followings:-
(1) That the person tried shall be placed before the Court unfettered.
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(2) The charge or information shall be read and explained to him to the satisfaction of the Court by the registrar or other officer of the Court.
(3) Such person shall be called upon to plead instantly thereto.
See Akpiri Ewe vs State (1992) NWLR (pt.246)147; OLABODE VS THE STATE (2009) 11 NWLR (pt.1152)254; KAJOLA V COP (1973) 9 -10 SC (REPRINT) 24; DIBIE & ORS V THE STATE (2007) 9 NWLR (pt.1038)30 or (2007)3 SC (pt.1)176; KAJUBO vs THE STATE (1988)SC 1 NWLR (pt.73) 721.
A valid arraignment should therefore entail that it must be conducted in open Court and shall involve the reading of the charge or information or indictment to the accused person or stating to him the substance of the offence or charge to the satisfaction of the Court before taking his plea. See Oyediran vs The Republic (1967) NMLR 122. All these processes are mandatory and not directory.
Section 215 of CPA must therefore, be strictly complied with. That provision is even further supported by the provisions of Section 36 (6) of the 1999 Constitution (as amended) which provides as follow:-
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“Every person who is charged with a criminal offence shall be entitled (a) to be informed promptly in the language he understands and the details of the nature of the offence”.
These constitutional provisions are mandatory and therefore must be strictly complied with. This is so, Because strict compliance with mandatory requirements relating to proceedings to be followed in criminal trial, is a pre-condition or pre-requisites of a valid trial. Where a trial Court fails to adhere strictly to a statutory procedure in criminal matter, for instance, as in this instant case, with the provision of Section 215 of CPA or Section 36 (6) of the 1999 Constitution, such trial is a nullity and therefore must be so declared. See EYOROKOROMO v THE STATE (1979) 6-9 SS C3; JOSIAH v THE STATE (1985)1 SC 406.
In the present case, considering the charge on which the appellant was arraigned before the trial Court, it can be noted that the Court did not comply with the provisions of Section 215 of CPA and Section 36 (6) (a) & (b) of the 1999 Constitution. The charge was not read and explained to him even if he really understood the language of the Court. The charge he faced
10
trial was that he dealt with substance or weeds confirmed to be Indian Hemp and when read to him, the record clearly shows that he said he consumed it. That reply by the accused prompted the prosecuting counsel to apply to amend the charge in line with what the respondent pleaded or wanted to plead. But unfortunately, the learned trial Judge jumped in and ordered that there was ‘no amendment to be made’. The trial Judge simply recorded plea of “guilty” and proceeded to convict him. That clearly shows that the charge was not properly read and explained to him because what he was charged of committing was different from what he said he committed. Even at that, in the course of the proceedings, when the weeds were tendered the accused/respondent seemed to have objected on the identity of the drug of substance because he said the one tendered by the prosecution was not his own substance or and that his own substance was in a different container but the trial Court simply glossed over that aspect of his objection and proceeded to convict him.
I must reiterate that a close and dispassionate look at the procedure adopted by the learned trial Judge is in total
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non-compliance with the provisions of Section 215 of CPA and Section 36 (6) (a) & (c) of the 1999 Constitution and is also a total neglect of all the principles guiding arraignment of accused person in Court. As I stated supra, those guiding principles are mandatory and not directory and must be strictly complied with in criminal proceedings. The learned trial Judge in this instant case, threw them overboard and therefore such neglect or non-compliance rendered the whole proceeding a nullity.
It is sequel to that that I am in entire agreement with the lower Court when in its judgment it stated as follows:-
“Because the arraignment and subsequent trial of the appellant are vitiated by a fundamental vice and failure to strictly observe significant steps (sic) in the conduct of a proper criminal trial, the entire proceedings remain a nullity and liable accordingly being set aside (sic)”
Thus, I am in entire agreement with the above finding or remarks by the lower Court.
The resultant effect of all that I have posited above, is that the sole issue raised in this appeal must be and is hereby resolved in favour of the respondent.
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In the result, I adjudge this appeal as unmeritorious. It fails and is accordingly dismissed. I affirm the judgement of the lower Court which set aside the conviction and sentence of the respondent. Appeal lacks merit. It fails and is accordingly dismissed. A verdict of acquittal and discharge is entered in favour of the respondent
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the privilege of reading before now the judgment of my learned brother Sanusi, JSC. His lordship has ably and painstakingly addressed all the issues raised by learned counsel for the respective parties. I agree with the reasoning and conclusion arrived at in the leading judgment. The appeal fails as it lacks merit and ought to be dismissed. I, too, hereby dismiss the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to underscore that support, I shall make some remarks.
This appeal is against the decision of the Court of Appeal or Court below or lower Court, Ibadan Division dated 10th December, 2014 delivered by Ali Abubakar Babandi
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Gumel, Obeatonbara Daniel-Kalio and Nonyerem Okoronkwo JJCA, in which judgment the Court below allowing the appeal, set aside the conviction and sentence of the Federal High Court, Abeokuta per Ofili- Ajuogobia J.
The detailed facts of this appeal are well set out in the lead judgment and I shall not repeat them except for the references that might be made on some parts thereof as the occasion dictates.
On the 25th day of October, 2018 date of hearing, learned counsel for the appellant, Segun Ololade Esq adopted the amended brief of the appellant filed on 7th March, 2018 and deemed filed on the 18th October 2018 and in it was distilled a single issue as follows:-
Whether the learned justices of the Court of Appeal erred in law when they held that the arraignment of the respondent fell far below the position of the law.
For the respondent, Mrs L. Omolola Ikwuagwu of counsel adopted her brief of argument filed on 5th May, 2017 and deemed filed on 18th October, 2018 and formulated a sole issue stated hereunder, thus:-
Whether the trial of the respondent is not a nullity for breach of the mandatory provisions of Section
14
215 of the Criminal Procedure Act and Section 36 (6) (a) & (e) of the 1999 Constitution of the Federal Republic of Nigeria. (Grounds 1 and 2).
The simply crafted issue of the appellant is apt for my purpose in the determination of this appeal and I shall use it.
SOLE ISSUE
Whether the learned justices of the Court of Appeal erred in law when they held that the arraignment of the respondent fell below the position of the law.
Learned counsel for the appellant in advancing his arguments stated that the respondent was properly arraigned as prescribed by Section 215 of the Criminal Procedure Act and in keeping with Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria. He cited Afolalu v State (2009) 3 NWLR (Pt.1127) 160.
That the trial Court did not breach respondent’s fundamental right to fair hearing as the Court acted according to the letter and spirit of the provisions of Section 215 CPA and there was no suggestion by the respondent at the trial that there was any infringement and so in the presumption of regularity all was done properly. He cited Section 168 (1) of the Evidence Act 2011;
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Nwachukwu v State (2007) 17 NWLR (Pt.1062) 31; Okewu v FRN (2012) 9 NWLR (Pt.1305) 327.
In response, learned counsel for the respondent submitted that the Court below had in line with the established law pronounced on the fatal effect of the trial Court’s failure to provide an interpreter for the respondent who apparently understood only Yoruba language which failure made the entire trial a nullity as Section 36 (6)(e) CFRN was not complied with; He cited Effiom v State (1995) 1 NWLR (Pt.373) 507; Erekanure v The State (1993) 5 NWLR (Pt.94) 385 at 392-303.
Learned counsel for the respondent contended that Section 168 of the Evidence Act does not apply as the facts of the case did not support the application of that statutory provision of S. 168 evidence Act.
This appeal is anchored on whether or not the respondent was properly arraigned and so while appellant contends there was fulfillment of the stipulations provided under Section 215 of the Criminal Procedure Act, the respondent disagreeing asserts that what transpired at the Court of trial fell short of what the law precisely the said Section 215 of the Criminal Procedure Act
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Of a truth the law on proper arraignment stipulates the following steps to be taken, thus:-
(i) The accused shall be placed before the Court unfettered unless the Court shall see cause otherwise to order;
(ii) 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
(iii) He shall then be called upon to plead instantly thereto unless there are valid reasons to do otherwise as provided for in Section 100 of the Criminal Procedure Act. See Afolalu v The State (2009) 3 NWLR (Pt.1127) 160.
Then the 1999 Constitution of the Federal Republic of Nigeria Section 36(6) precisely prescribes as follows:-
“(6) Every person who is charged with a criminal offence shall be entitled to-
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
It needs reiteration having stated the statutory provisions under Section 36 (6) (e) CFRN that the essence of providing an interpreter for an accused particularly one not represented by counsel as in the case in hand is to
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ensure the fair trial of the said accused and that he understands the charge or information against him, that he understands and is able to follow the trial without being kept in the dark at all times up to his conviction or acquittal as the case may be. Failure to provide for that interpretation has a fatal effect on the trial as there would then be a failure to comply with the Constitutional provision under Section 36 (6). See Anyanwu v The State (2002) 13 NWLR (Pt.783) page 107 at 136 per Katsina-Alu JSC (as he then was), wherein the learned jurist stated at page 138 to 139 thus:-
“On the issue of the absence or otherwise of an interpreter to interpret the proceedings to an accused person in Court, a clear distinction must be made (i) where the Court recorded the appearance or presence of the interpreter on the first day of his appearance but failed to do so on subsequent days and (ii) where no record of such interpreter was made at all. In the first situation, there is the presumption of regularity that the interpreter was present on subsequent day or days even though not so recorded unless proved otherwise. In this case failure to record the
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presence of the interpreter is not fatal to the proceedings. See Edun v IGP (1966) 1 ALL NLR 17; Udeh v State (1999) 7 NWLR (Pt,609) 1; Locknan v State (1972 )ALL NLR 498.
But in the second situation, there is clear non-compliance with the constitutional provisions as to fair hearing under Section 36(a) and (e) of the 1979 Constitution and the result is to vitiate the whole proceedings”. {Underlining mine).
To the case at hand therefore, the Court below found fault in the proceedings at the trial court where there was no interpreter provided where obviously the accused now respondent understood only a Language and this failure occurred throughout from the arraignment up to the sentencing. Infact the evidence of PW1 at the proceedings of 23rd May 2012 showed clearly that the only Language understood by the respondent was Yoruba Language. The Court of Appeal captured the situation in its summation thus:-
“The apparent failure of the lower Court to provide an interpreter to the Appellant is contrary to Section 36 (6) (e) of the 1999 CFRN which provides that where an accused person standing trial does not understand the language of the Court in
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which the proceedings were being conducted, he shall be entitled free of charge to an interpreter of the entire proceedings in any language he understands. In the old case of Ajayi v Zaria NA (1963) 1 ALL NLR 169, it was held that the interpreter must be competent enough to interpret from the language understood by the accused. He must, in the course of this task or duty be clear, accurate and comprehensive… Because the arraignment and subsequent trial of the appellant are vitiated by a fundamental vice and failure to strictly observe a significant step in the conduct of a proper criminal trial, the entire proceedings remain a nullity and liable to accordingly being set aside. (Emphasis supplied) see page 81 of the record.
On 12th of October, 2010 accused person was transferred from Sango Ota Police Station to our area Command Ogun along with some dried weed concealed in a black polythene bag.
I recorded his statement. I cautioned the accused in the Language he understood ‘Yoruba’ and recorded his statement in Yoruba”. [Underlining mine).
The finding of the Court below based on the evidence before it, precisely that of PW1 showed a fundamental
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breach of the right of the respondent to the fair hearing he deserved and a community reading of Section 36 (6) (a) CFRN and Section 214 CPA has the matter already settled that the arraignment and trial were fundamentally flawed.
I shall quote the two statutory and constitutional provisions for effect and fulfillment of righteousness as follows:-
Section 215 of the CPA provides thus,
“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 not been duly served therewith”.
Section 36(6)(a) of the CFRN 1999 provides as follows:
“(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
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the nature of the offence”. (Emphasis supplied)
The earlier words of the Supreme Court where such an infraction occurs would be helpful for a clearer view. See Effiom v State (1995) 1 NWLR (Pt.373) 507 per Iguh JSC thus:-
“It seems to me quite plain that the said mandatory conditions laid down in Section 215 of the Criminal Procedure Law together with the provisions of Section 33(6) (a) of the 1979 Constitution have been specifically provided to guarantee the fair trial of an accused person and to safe guard his interest at such a trial. I should stress that it is the duty of a trial Court to ensure strict compliance with the said provisions by reflecting such compliance in the Court’s record. See Josiah v State(Supra). (Emphasis supplied)
The same views had been stated earlier in Erekanure v The State (1993) 5 NWLR (Pt.94) 385 at 392-303 as follows:-
“These requirements although familiar were not followed by the trial Court. These requirements which have been spelt out in Sunday Kajubo v The State (1988) 1 NWLR (Pt.73) 721/731 and 737 are:
1. The accused must be present in Court unfettered, unless there is a compelling reason to
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the contrary.
2. The charge must be read over to the accused in the language he understands.
3. The charge should be explained to the accused ‘to the satisfaction of the Court’.
4. In the course of the explanation technical language must be avoided.
5. After requirements 1 to 4 have been satisfied the accused will then be called upon to ‘plead instantly’ to the charge.
In this case on appeal, and according to the printed record, there is nothing to show that the Court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language If as it has been shown also that it was read, was explained to him No, there is nothing on record to show also that it was even read by the registrar or an officer of the Court. Where for instance no officer of the Court is capable of interpreting the charge in the language the accused erson understands a sworn interpreter is produced to explain the char e to the accused”
(Emphasis supplied)
In the case at hand the respondent was not represented
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by counsel at the Court of trial and so the absolute necessity for the strict and rigid compliance with the provisions of Section 215 CPA and Section 36 (6) (a) CFRN 1999 and so a situation whereby on the date of arraignment on the 23rd of May, 2012 at the trial Court what is on record is thus:-
“Charge read. Accused person pleads guilty to consuming drug. Not dealing.”
Certainly no one can properly assert that the mandatory provisions of Section 215 CPA was complied with as nothing shows that the charge was read and explained to the accused person to the satisfaction of the Court. The situation becomes more damning in the light of the illiterate status of the respondent as attested in the cross-examination of the PW1 who stated that he recorded the statement of the respondent at the Police Station in the language he understands being Yoruba which counters the clear provisions of Section 36 (6) (a) CFRN which stipulates the accused respondent should be informed promptly in the language he understands and in detail of the nature of the offence.
The procedure adopted by the learned trial judge speaks for itself and that is a substantially flawed
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and irregular procedure, in the face of the trial of an accused who appeared without legal representation. Therefore the appellant seeking the assistance of the cases of Ogbeneovu v FRN (2013) 11 WRN page 144 and Nwachukwu v State (2007) 17 NWLR (Pt.1062) 31 sought that help in vain since in the two cases cited by the appellant accused was represented by counsel and there was no suggestion that he did not understand the language of the Court being English.
It needs be said that stare decisis only applies to a case with similar facts to the earlier case being used in support. A case as precedent is of no use where the facts or circumstances are dissimilar or not on all fours as it is a principle that does operate in vacuo or just for the heck of it.
I have to state that in this case at hand a rigid and strict adherence to the provisions of Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria is mandatory and there is no short changing any part of it in the light of the accused/respondent being on trial without counsel. Therefore a reasonable person who was present at the trial would certainly observe that justice has not been
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done and the test of fair hearing applied would be said to have not been up to what is required.
See Effiom v State (1995) 1 NWLR (Pt.373) 507 at 569 per Onu JSC; Isiyaku Mohammed v Kano Native Authority (1968) 1 ALL NLR 424 at 426 per Ademola CJN.
In the final analysis it is difficult to go against what the Court of Appeal found and reached its decision on and so from the foregoing and the better reasoning in the lead judgment, I dismiss the appeal as I abide by the consequential orders made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Amiru Sanusi, JSC just delivered. The reasoning and conclusion are in accord with mine.
The proper arraignment of a person accused of committing a crime is fundamental. It ensures that his fundamental right to fair hearing is protected. This is in accordance with Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999, as amended, which provides as follows:
“Every person who is charged with a criminal offence shall be entitled to-
(a) to be informed promptly in the
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language 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;
(c) to defend himself in person by a legal practitioner of his own choice;
(d) to examine in person or by his legal practitioner 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 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.”
Section 215 of the Criminal Procedure Act provides:
“215. The person to be tried therewith 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
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entitled to service of a copy of the information he objects to want of such service and the Court finds that he has not been duly served therewith.”
The fundamental nature of the proper arraignment of an accused person has been emphasized in a plethora of decisions by this Court where it has been held that the provisions of Section 215 of the CPA are mandatory and failure to comply therewith renders the entire proceedings and any decisions reached therein, null and void. See:Erekanure Vs The State (1993) 5 NWLR (Pt. 294) 385; Kajubo Vs The State (1988)1 NWLR (Pt. 73) 721; Solola & Anor. Vs The State (2005) 11 NWLR (Pt. 937) 460; Olayinka Vs The State (2007) 9 NWLR (Pt. 1040) 561 @ 585 D-H.
In Kajubo Vs The State (Supra) @ 738 A-F, His Lordship, Oputa, JSC explained the rationale for strict adherence to Section 215 of the C.P.A. thus:
“The mandatory provisions of Section 215 of the Criminal Procedure Act that the information or charge should be firstly read over to the accused, then secondly, explained to the accused and thirdly, explained to him to the satisfaction of the
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Court, are not merely cosmetic; they are not semantics – No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea. Section 215 C.P.A. sets out the mandatory rules required by law for a proper arraignment – Now arraignment is ad rationem ponere; it is calling an accused person to reckoning. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him It is a notorious fact that English, the ‘language of the Court/the language in which charges and information are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and that even those of them who are literate may not easily comprehend the language of the Court. For these reasons, our criminal procedure and our 1979 Constitution considered it necessary that for there to be a proper arraignment:
(i) The accused person shall be present in Court;
(ii) The charge or information shall be read to him in a language he understands;
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(iii) The charge or information, after being read over in such language should then be explained to him avoiding as much as possible the use of technical expressions. This explanation should acquaint the accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged.
(iv) To make assurance doubly sure the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.”
(Emphasis by His Lordship).
Following from the authorities above and the provisions of Section 36 (6) of the 1999 Constitution and Section 215 of the CPA, several factors stand out like a red flag from the arraignment of the respondent on 23/5/18. The proceedings have been fully set out in the lead judgment.
The first is that the appellant was not represented by counsel; secondly there is no indication on the record that the charge was explained to the respondent in a language that he understands. In fact there is no indication as to the language in which the charge was read to him. Thirdly, the respondent did not
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plead guilty to dealing in Indian Hemp as charged. The record of the Court reads: “Charge read. Accused person pleads guilty to consuming the drug. Not dealing.”
Pursuant to this plea, the prosecutor applied to amend the charge. The application was peremptorily refused.
I am of the humble view that if ever there was a travesty of justice, this case is a clear example. Not only was there no proper arraignment, the Court showed a most unfortunate disregard for the respondent’s right to fair hearing. The conviction and sentence of 15 years imposed on the respondent so casually cannot be allowed to stand.
The Court below was on solid ground when it declared the entire proceedings a nullity and set same aside.
I agree with my learned brother, Sanusi, J.S.C that this appeal lacks merit. I dismiss it accordingly and uphold the judgment of the lower Court.
EJEMBI EKO, J.S.C.: I had a preview of the judgment just delivered by my learned brother, AMIRU SANUSI, JSC. I hereby endorse the judgment as I am in full agreement with it.
At the risk of boring tautology, let me reproduce the proceedings at the
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arraignment of the Appellant.
FEDERAL REPUBLIC OF NIGERIA
AND
AKEEM OGUNROMBl
Case called.
O. Ogar: appears for the complaint(sic)
Accused in Court
Ogar: Matter is for arraignment. I apply that (the) charge be read over to (the) Accused person in order (that) the plea be taken.
Court: Charge read. Accused pleads guilty to consuming the drug. Not dealing.
Ogar: I wish to amend the charge.
Court: No. Charge will not be amended. Review your case and let us know whether the exhibit is the accused person’s weeds.
The accused person, the Respondent herein, was charged for dealing in 100 grammes of cannabis sativa (Indian Hemp).
Dealing, connotes an act of buying and selling; purchase and exchange of the 100 gm of cannabis sativa for profit. It conveys the impression that the accused person was in the business of distributing to and/or transacting the business of buying and selling the cannabis sativa for profit. See Black’s Law Dictionary 9th ed, page 457. It is trite that the prosecution bears the burden of proving beyond reasonable doubt the guilt of the accused based on the averments in the charge.
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As consuming, the accused person pleaded guilty to, and dealing in 100 gm of the cannabis sativa are two different or distinct things or offences the trial Court appears to me rather too intrusive in its refusal to allow the prosecutor amend the charge to accord with the plea of accused person. The moment the prosecutor sought leave to amend the charge he exhibited a doubt in his mind that the accused person may not, after all, be guilty of the allegation of dealing in the cannabis sativa charged. Clearly, his confidence in the charge proferred against the accused person had been shaken.
The PW.2 testified that the drug, analysed, tested positive to cannabis sativa and tendered Exhibits PD.2 and PD.3 in support. However, when the PW.2 attempted to tender a big bag of weeds, the accused person protested that his weeds were in small sachets, and not the big black bag, thus suggesting tampering in order to frame him. He was overruled upon the trial Court’s reasoning that the weeds tendered by the prosecution were similar to the 100 gm the accused a person alluded to. At the material point, the PW.2 concluded his evidence-in-chief the record of
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the proceedings does not show that the accused person was invited to cross-examine him. The Court’s record erroneously shows that the accused person had on 23rd May, 2012 pleaded guilty to the charge. The accused person did not plead guilty to dealing in 100 gm of the cannabis sativa. The trial Court, even though doubting whether the accused person “intended to deal with or was dealing with the weeds as stipulated under Section 11(c) of the N.D.L.E.A. Act CAP N30 LFN/1990” still, nonetheless, proceeded to asking the accused person to plead his allocatus, without any formal verdict of conviction, or that the accused was guilty as charged. The trial Court though found that the accused person had “declared in his own words — that he intended to smoke” the 100 gm of cannabis sativa the subject of the charge.
The procedure adopted by the trial Court, culminating in its sentencing the accused person to 15 years imprisonment, completely denied the accused person fair trial. The trial Court had capriciously and unilaterally sentenced the accused person to 15 years imprisonment for declared intention to smoke cannabis sativa supposedly under Section 11 (d) of
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the N.D.L.E.A Act. The offence under the said provision is one of knowingly possessing or using, not one of any intention to smoke or consume, cannabis sativa.
Throughout the proceedings at the trial Court it was not anywhere recorded that the Court, in its overzealousness, availed the accused person free interpretation, a right he enjoys under Section 36 (6) (a) of the Constitution, if he did not understand the lingua franca of the trial Court. The proceedings culminating in the 15 years imprisonment imposed on the accused was nothing but a charade, a mere pretension to fair trial, which in actuality was a classical case of unfair trial. The lower Court was thus right in reversing the purported conviction and sentence imposed on the accused person.
Like my learned brother, AMIRU SANUSI, JSC, I am entirely in agreement with the conclusion of the lower Court because-
“the arraignment and subsequent trial of the (Respondent herein) are vitiated by a fundamental vice and failure to strictly observe (the) significant steps (sic: procedure) in the conduct of a proper criminal trial, the entire proceedings remain a nullity, and it
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is accordingly set aside.” The appeal is hereby dismissed in its entirety. I affirm the order of lower Court that acquitted and discharged Respondent herein, as the accused person at the trial Court.
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Appearances:
Segun Ololade For Appellant(s)
L.O. Ikwuagwu (Mrs.) For Respondent(s)
Appearances
Segun Ololade For Appellant
AND
L.O. Ikwuagwu (Mrs.) For Respondent
