MONDAY IREK OKIMBA V. THE STATE (2012)

MONDAY IREK OKIMBA V. THE STATE

(2012)LCN/5540(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2012

CA/C/50/2011

RATIO

CRIMINAL PROCEDURE: NATURE AND REQUIREMENTS FOR A VALID ARRAIGNMENT

Arraignment is the commencement of trial in a criminal case, and it consists of the production of the accused person in court, the reading over of the charge and explanation of same to the accused, and the taking and recording of his plea.

Section 209 of Criminal Procedure Law Cap. C. 17 Laws of Cross Rive State, 2004 (CPL) provides for arraignment procedure as follows:

“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 to 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.”

The above provision is in pari materia with Section 215 of the Criminal Procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004 (CPA).

Thus a valid arraignment consists of the following:

(a) That the person to be tried must be presented to court unfettered, unless the court otherwise directs.

(b) That the charge against him shall be read over and explained by the registrar or other officer of the court in the language he understands and to the satisfaction of the judge.

See Lufadeju vs. Johnson (2007) 1 NWLR (pt. 1037) 538.

PROCEDURE: CONSEQUENCE OF AN IMPROPER ARRAIGNMENT OF AN ACCUSED PERSON

The consequence of an improper arraignment of an accused person under Section 209 (CPL) or Section 215 CPL is a denial of the accused person’s right under Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 and it vitiates the whole trial and renders it null and void. The result is that there has been no trial, the proper order to make in the circumstances is that of a fresh trial and not a retrial. See Yerima vs. State (2010) 14 NWLR (pt. 1213) 25. PER ISAIAH OLUFEMI AKEJU, J.C.A

CRIMINAL PROCEDURE: DUTY OF THE COURT IN TAKING A PLEA

In taking a plea of an accused person at the onset of his trial, the court must do the following.

“explain the charge to the accused and record the manner in which it is explained; record the replies of the accused as nearly as possible in the words uttered by him; explain the ingredient of the offence to the accused and record his reply; and show that it satisfied itself that the accused has clearly understood the meaning of the charge in all its details and essentials and also the effect of the plea.”

Where there are more than one accused person in a criminal trial, their pleas must be individually and separately taken. Eyisi vs. The State (2000) 12 SC pt1 page 24. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

MONDAY IREK OKIMBA Appellant(s)

AND

THE STATE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A (delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Obubra Division delivered on 29th June, 2009. The appellant and one Sunday Ewoh Nnachi were the accused persons in charge No. HB/1C/2007 wherein they were alleged to have committed the offence of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 in that they robbed one Benedict Igwe Ali of goods valued at N137,800.00 (One Hundred and Thirty, Seven Thousand, Eight Hundred Naira) on 19th August, 2006 at Apiapum, Obubra while armed with guns.
The prosecution called one Sergeant Omori Ibang attached to the Anti. Robbery Squad, State C.I.D. Calabar as the only witness. He was the Police Officer that investigated the case after it was transferred from Obubra Division to the State C.I.D. The accused persons made no case submission through their counsel after the evidence of the prosecution, and the learned trial judge thereafter adjourned for judgment whereupon the accused persons were found guilty of armed robbery, convicted and sentenced to death.
The appellant was dissatisfied with the judgment and upon the motion filed on 18th February, 2012 this court, by the order of 23rd March, 2011 enlarged the period within which to appeal, and on the same date, the appellant filed Notice And Grounds of Appeal with 7 grounds. The Appellant’s Brief of Argument settled by Innocent C. Ovat Esq. of counsel was filed on 8th June, 2011 with the following issues distilled for determination:
1. Whether the accused persons plea as recorded by the learned trial judge was validly, properly and regularly taken as required by Section 209 of the Criminal Procedure Law Cap. C 17 Vol. 3, Laws of Cross River State, 2004.
2. Whether the entire proceedings in HB/1C/2007 ought not to be quashed for failure of the prosecution to seek and obtain leave of the judge before filing the information.
3. Whether the judgment of the lower court is not nullity for violation of the appellant’s right to fair hearing.
4. Whether the trial court in the absence of any legally admissible corroborative evidence was right to have placed reliance on a retracted extra-judicial statement.
The Respondent’s Brief of Argument settled by Eneji Amajama SSC II in the Ministry of Justice, Calabar was filed on 10th October, 2011 but deemed on 23rd February, 2012. The issues formulated for determination therein are the following:
1. Whether the totality of the arraignment of the appellant (on the 9/5/2007) was in substantial compliance with the provision of Section 209 of the Criminal Procedure l-aw Cap. CL7, Vol. 3 Laws of Cross River State, 2004.
2. Whether the failure to obtain consent of the judge to prefer this information con be raised for the first time in this court regard being had to the provision of Section 309 (3) (b) of the Criminal Procedure Low Cap. C17 Vol. 3 Laws of Cross River State, 2004.
3. Whether the learned trial judge was right when he proceeded to convict the appellant after overruling the no-case submission made and relied upon by the appellant.
4. Whether the trial judge was correct in his judgment when he placed reliance on the retracted confessional statement of the appellant (exhibit 3) in the circumstance of this case.
At the hearing of the appeal, the parties were represented by their respective learned counsel who adopted their briefs and urged court to accept the position as canvassed therein.
It is pertinent to state that Mr. Okah of counsel moved the motion filed on 4th October, 2011 for leave to allow the appellant raise and argue fresh issue concerning the prosecutor’s non-compliance with conditions precedent to filing the information in change No. HB/1C/2007. Amajama Esq. learned counsel for the respondent did not oppose, and the application was granted thereby removing the potency of issue number 2 in the respondent’s brief.
The arraignment proceedings and the plea of the appellant is the first issue raised by the appellant’s counsel and it is also the 1st issue formulated by the respondent.
It had been contended by appellant’s counsel that the learned trial judge failed to comply with the mandatory procedure for arraignment as provided by Section 209 of Criminal Procedure Law Cap. C17 Vol. 3 Laws of Cross River State, 2004 in that the plea of the two accused persons as replicated on the record is ambiguous, improper invalid and not in compliance with the requirements for a valid arraignment and plea. The cases of Akpiri Ewe vs. State (1992) 7 SCNJ (Pt. 7) 15; Alake vs. State (2001) FWLR (Pt. 65) 435 and Ibrahim vs. State (2011) FWLR (Pt. 1227) 1 were cited in support of the argument that the requirements for a valid arraignment are inextricably tied to the Constitutional right to fair hearing and that once the plea of the accused person is not properly taken and properly recorded, the trial will be a nullity.
It was also submitted that where two or more accused persons are jointly arraigned, it is mandatory that the plea of each of them must be separately taken and separately record, citing R. V. Zeniulla & Ors. (1945) 12 WACA 68; Sam vs. State (1991) 2 NWLR (Pt. 176) 699. It was further submitted that the consequence of the group plea as taken by the learned trial judge is that the whole trial and the judgment thereupon is null and void, citing Yahaya vs. State (2002) 3 NWLR (pt.754) 289; Alintah vs. FRN (2010) 6 NWLR (pt. 1191) 508.
The respondent conceded the requirements for a valid arraignment as stated by the appellant, but contended that the learned trial judge substantially complied with those requirements and the arraignment was therefore valid. It was also contended that the irregularity in failing to record separate plea for the appellant and his co-accused will not lead to quashing the verdict of the trial court because no miscarriage of justice has been occasioned thereby, citing Solola vs. State (2005) 22 NSCQR (pt.1) 254.
Arraignment is the commencement of trial in a criminal case, and it consists of the production of the accused person in court, the reading over of the charge and explanation of same to the accused, and the taking and recording of his plea.
Section 209 of Criminal Procedure Law Cap. C. 17 Laws of Cross Rive State, 2004 (CPL) provides for arraignment procedure as follows:
“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 to 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.”
The above provision is in pari materia with Section 215 of the Criminal Procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004 (CPA).
Thus a valid arraignment consists of the following:
(a) That the person to be tried must be presented to court unfettered, unless the court otherwise directs.
(b) That the charge against him shall be read over and explained by the registrar or other officer of the court in the language he understands and to the satisfaction of the judge.
(c) The accused shall instantly be called upon to plead to the charge, and the plea shall be recorded instantly.
See Lufadeju vs. Johnson (2007) 1 NWLR (pt. 1037) 538.

The requirements for a valid arraignment must be fully complied with as they are mandatory and not directory. Any failure to comply therewith will render the whole trial null and void. See Amala vs. state (2004) 12 NWLR (Pt. 888) 520; Tobby vs. State (2001) 10 NWLR (Pt. 720) 23; Effiom vs. State (1995) 1 NWLR (pt. 373) 507; Ogunye vs. State (1999) 5 NWLR (Pt. 604) 548; Sunday Kajubo vs. The State (1988) 1 NSCC 475; Erekanure vs. The State (1993) 5 NWLR (Pt. 294) 385.
In the instant appeal, the arraignment and plea of the appellant and his co-accused in the proceedings of 9th May, 2007 at page 27 of the record of appeal is as follows:
“Accused persons are present. P. S. Bisong ADPP for the State. A. A. Obo with B. E. Enang and I. A. Awassem for the accused persons. Plea taken and charge is read to both accused persons, understands same, plead not guilty.”
The above record shows a bulk reading of the charge to both accused persons without any indication as to the separate plea of the individual accused person. While it is permissible for the court to read over and explain the charge to the accused persons jointly in a case involving more than one accused, the plea of each accused person must be separately taken and separately recorded so as to satisfy the requirement of Section 209 of CPL or Section 215 of CPA. See Cyril Udeh vs. The State (1999) 5 SC (Pt. 1) 87, (2001) FWLR (pt.77) 1052.
The consequence of an improper arraignment of an accused person under Section 209 (CPL) or Section 215 CPL is a denial of the accused person’s right under Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 and it vitiates the whole trial and renders it null and void. The result is that there has been no trial, the proper order to make in the circumstances is that of a fresh trial and not a retrial. See Yerima vs. State (2010) 14 NWLR (pt. 1213) 25.
I resolve this issue in favour of the appellant. The net result is that I allow the appeal and quash the conviction of the appellant. I order a fresh trial of the appellant before another judge of the High Court of Cross River State.
With the order i have made in this appeal, it has become unnecessary to delve into the other issues raised by the parties.

MOHAMMED LAWAL GARBA, J.C.A.: I agree with the; views expressed and, the conclusion reached by my learned brother I. O. Akeju, JCA, in the lead judgment declared by him, a draft of which I read before now.
For the reason set out by him in the lead judgment, I too allow the appeal and order for a fresh trial of the charges against the Appellant.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA.
In taking a plea of an accused person at the onset of his trial, the court must do the following.
“explain the charge to the accused and record the manner in which it is explained; record the replies of the accused as nearly as possible in the words uttered by him; explain the ingredient of the offence to the accused and record his reply; and show that it satisfied itself that the accused has clearly understood the meaning of the charge in all its details and essentials and also the effect of the plea.”
Where there are more than one accused person in a criminal trial, their pleas must be individually and separately taken. Eyisi vs. The State (2000) 12 SC pt1 page 24.
For this and the more comprehensive reasons in the lead judgment, I allow the appeal also. I also abide by all the other consequential orders contained therein.

Appearances

Innocent C. Ovat Esq.For Appellant

AND

For Respondent