IBRAHIM JOSEPH v. THE STATE (2013)

IBRAHIM JOSEPH v. THE STATE

(2013)LCN/6248(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2013

CA/J/95C/2011

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

IBRAHIM JOSEPH Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE CONDITIONS PRECEDENT TO ENSURE LAWFUL AND PROPER TRIAL OF ANY PERSON CHARGED WITH A CRIMINAL OFFENCE

Now by Section 36(6) (a) (e) of the constitution of the Federal Republic of Nigeria 1999 as amended provisions and conditions precedent to ensure lawful and proper trial of any person charged with criminal offence have been put in place. They are all sine qua Non to all criminal trials in order to further ensure that a defendant in a criminal trial is given fair hearing before a court or Tribunal in the determination of his civil rights and obligations. The provisions of the said Section 36(5) (a) (e) of the 1999 Constitution aforesaid are as follows:-
“36(6) Every person who is charged with a criminal offence shall be entitled to:-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioner of his own choice.
(d) Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence” PER IGE, J.C.A.

THE REQUIREMENTS OF A VALID ARRAIGNMENT OF AN ACCUSED PERSON

WHETHER OR NOT AN ACCUSED PERSON MUST BE ASKED TO PLEAD TO AN AMENDED CHARGE

The law is settled that when a charge which is being tried is amended by the prosecution in the course of hearing or trial the Accused must be asked to plead to the charge amended because it constitutes a fresh charge. There is no doubt that under Section 208 0f the Criminal Procedure Code of Northern Nigeria the trial Judge has discretionary powers to alter, add or frame a new charge by way of amendment before Judgment. Once that is allowed the charge must be read and explained to the accused again. See the case of DOMINIC PRINCENT & ANOR Vs The State (2002) 18 NWLR (part 798) 49 at 58 G-H to 69 A-F G per IGUH, JSC who held:-
“I think the point must be stressed that the vital consideration which governs the amendment of a charge whether suo motu by the court or on the application of the prosecution after addresses by counsel but before judgment is that such amendment may be made without injustice to the accused. In this regard, the various sections of the Criminal Procedure Act, Cap.80, Laws of the Federation of Nigeria, 1990, such as section 164 and 165 and those of the Criminal Procedure Code, Laws of Northern Nigeria, such as Sections 208(2), 206, 210 and 211, all of which prescribe the necessary procedure a court shall adopt on granting the amendment of a charge must be strictly complied with.
These, to a large extent, are to ensure that the accused persons neither prejudiced nor suffers any injustice by virtue of the amendment. See R. Vs. Kano and Another, (supra), These procedure which, inter alia, include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto, finding out from the accused whether he is ready to proceed with his trial on such an amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused and, indeed, the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. See Okonofua v. The State (1981) 12 NSCC 233; Okegbu v. The State (1979) 11 SC 1 etc. Accordingly, an amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code, Cap 30 may be made at the instance of either the prosecution or, suo motu by the court. However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Sections 208(2), 209, 210 and 211 of the Criminal Procedure Code. Those rights, it seems to me, are inbuilt safeguards with a view to ensuring that an accused person by virtue of an amendment is not thereby prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully preserved. See too Okosun v. The State (1979) 3 – 4 SC 36. PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering The Leading Judgment): The Appellants, Ibrahim Joseph (M) was arraigned on a three court charge at the trial court as follows:-
“COUNT 1
IBRAHIM JOSEPH (M) 45, of Muntokshi Village in T/Balewa Local Government Area of Bauchi State, with the jurisdiction of the Hon. Court sometimes in December, 2010, was found in possession of firearms without license, contrary to Section 3 of the Fire Arms Act Cap. F28, LFN 2004 and punishable under Section 27 of the same Act.
COUNT 2
IBRAHIM JOSEPH (M) 45, of Bauchi State within the jurisdiction of the Hon, court sometimes in December 2010, was found to be in the business of selling, exposing for sale and or transferring of firearms, without license contrary to Section 9 of the Fire Arms, without license contrary to Section 9 of the First Arms Cap. F.28, LFN 2004 and punishable under Section 27 of the same Act.
COUNT 3
IBRAHIM JOSEPH (M) 45, of Muntakshi Village in T/Balewa Local Government Area of Bauchi state, within the jurisdiction of the Hon, court sometimes in December, 2010, was found to be manufacturing FireArms without license contrary to Section 22 of the Fire Arms Act Cap F.28, LFN 2004 and punishable under Section 27 of the same Act.”
The matter came up before the trial court SALIHU-J at the Federal High court Bauchi on 3rd day of Feb January, 2011 and the plea of the Appellant was taken. The Appellant pleaded NOT GUILTY to count 1 but he PLEADED GUILTY to counts 2 and 3 of the charge before the trial court.
The prosecution then urged the trial court vide Section 33 of the Federal High Court Act to impose sentence on the Appellant in respect of 2nd and 3rd Counts of the charge while at the same time sought for an adjournment to enable the prosecution produce witness to proof count 1 of the charge to which the Appellant had pleaded NOT GUILTY. The trial Court obliged and the matter was adjourned till 11th day of February, 2011 for hearing. The Appellant was then remanded in prison custody by the lower court.
For reason not apparent on the record the matter came up on 14th day of February, 2011, on that date M. M. Adamu Esq., SC II appeared for the prosecution while J. A. Ameh, (Miss) appeared for the Appellant. The prosecutor then made an application in the following terms viz:-
“My Lord, the case is adjourned to today for sentence of (sic) the plea of the accused on the 2nd and 3rd count charges. I have 2 applications to make. Firstly is to effect a minor typographical error as to the section the accused is charged with, we mistakenly printed Section 22 and not S.23 of the Firearms, Act.
The court then ruled thus:-
“The application of the prosecuting counsel on the typographical error on Count three charge against the accused is noted and corrected to read Section 23.”
The prosecutor then made a short address to the court on the counts to which the Appellant pleaded guilty and urged the trial court to sentence the appellant on the said counts 2 and 3 to which he pleaded guilty.
The learned counsel to the Appellant thereafter made the following allocutus viz:-
“Accused Counsel:-
My Lord, we urge the court to be lenient with the accused. He is a first offender. He is a family man with so many defendants. (sic) In the alternative to be given option of fine”
The learned trial Judge then proceeded to sentence the Appellant thus:-
“Court:- The Accused is convicted upon his plea of the 2nd and 3rd count charges, Accused is a first offender. Accused gave his age as 45 years. The offence of selling expose for sale or manufacturing arms attracts a punishment of imprisonment for a term not exceeding five years,while that of manufacturing of fire arms attracts a punishment of a minimum of sentence of ten years. Accused is sentence (sic) to a terms of imprisonment of 2 years for the offence of selling. As to the offence of manufacturing there is nothing this court can do to the accused than impose the maximum sentence as prescribed by law on the accused. Accused is sentenced (sic) to ten years imprisonment of the 3rd offence. Either party not satisfied have the right of appeal to the Court of Appeal. As for the 1st count case is adjourned to 03/03/2011 for hearing.”
Perhaps peeved or aggrieved by the sentence meted upon him the Appellant appeared to this court on five grounds contained in the Notice and Grounds of Appeal filed on 10-5-2011, which particulars are as follows:-
“PART OF THE DECISION COMPLAINED OF:
The whole decision
GROUNDS OF APPEAL
1. The decision of the Lower Court is against the evidence.
2. The Learned erred in law when he failed to order that the charges be read over and explained to the accused person before calling on the accused to plead thereto.
PARTICULARS OF ERROR
(a) From the record of proceedings of the Lower Court dated 3/02/2011 the accused person speaks and understanding Hausa Language which is not the official language of the Lower Court
(b) Still from the records of the lower court, it is no where shown that the charges to which the accused person pleaded guilty were read and explained to him in Hausa Language.
(c) S.215 of the Criminal Procedure Act required that the charge shall be read and explained to the accused before he pleads thereto.
(d) This implies that the charges shall be read to the accused person in the Language he understands which in this case is Hausa Language.
(e) The failure of the trial court to read and explain the charges to the accused person before asking him to plead thereto rendered the entire proceedings of 3/02/2011 and the subsequent conviction and sentence of the deceased person null and void.
3. The Learned trial Judge erred in law when he allowed the prosecution to amend the charge without giving the accused person who was present in court with his counsel an opportunity of being heard and this failure has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(a) On 11/02/2011 after the accused person had pleaded guilty to counts 2 and 3 of the charge against him, the prosecution applied to amend the charge orally by substituting S.23 of the Firearms Act for S.22 of the same law.
(b) The learned trial judge did not deem it fit to ask the accused person whose counsel was present whether he was opposing the application but went ahead to grant the application of the prosecution.
(c) Failure to ask the accused person whether or not he was opposing the application has occasioned a miscarriage of justice as he was to be effected by the amendment.
(d) Failure to hear from the accused person rendered the entire conviction and sentence of the accused person null and void and of no effect.
4. The learned trial judge erred in law when he failed to read over and explain to the Accused the amended charge.
PARTICULARS OF ERROR
(a) From the record of proceedings of the lower court dated 11/02/2011, the prosecution applied to amend the charge by correcting “a minor typographical error”.
(b) The so called “Minor typographical error” is the substitution of Section 23 for Section 22 of the Firearms Act.
(c) After the amendment which was granted without hearing the accused person, the court again failed to read over and explain the amended charged to the accused person but went ahead to convict and sentence (sic) the accused on the amended charge.
5. The learned trial judge erred in law, and this error occasioned a miscarriage of justice when he failed to give the accused person a fair hearing.
PARTICULARS OF ERROR
(a) From the record of proceedings of the Lower Court dated 3/02/2011 the 2 count charge to which the accused person was asked to plead thereto was not read over and explained to the accused person.
(b) Again after the charge was amended by substituting Section 23 for S.22 of the Firearms Act, the amended charge was not read over and explained to the accused person who was present in court with his counsel and his plea to the new charge was not taken before his conviction and sentence on the amended charge.
(c) The failure of the lower court to accord the accused person a fair hearing has rendered the entire proceedings commencing from the arraignment of the accused person and culminating on this conviction and eventual sentence a nullity.”
The Appellant is therefore seeking from this court an order quashing the decision of the lower court dated 14-2-11 and directing for the trial de novo before another judge of the lower court.
The Appellant’s Brief of Argument was filed on the 10th day of June, 2011, it was dated 9th day of June, 2011. The Respondent’s Brief of Argument was filed on the 14th day of July 2011. It was dated 13th day of July 2011. The appeal was heard on 5th day of June, 2013 when the learned counsel to the Appellant and the Respondent adopted their Brief of Arguments.
The Appellants distilled four (4) issues for determination viz:-
“1. Whether the lower court was under a legal obligation to read and explain the charge to the accused (now appellant) before asking him to plead thereto.
2. Whether the appellant was entitled to be heard before allowing the respondent to amend or alter the charge.
3. Whether the lower court after altering or amending the charge was required under the law to read over and explain the amended charge to the appellant and thereafter ask him to plead thereto.
4. Whether from the evidence and printed record of the lower court, the appellant was given a fair hearing.”
On her part the Respondent formulated three issues for determination namely:-
“1. Whether a more (sic) correction of a wrongly typed figure of a section of the law does not amount to amendment of a charge.
2. Whether the appellant was not heard before the minor correction was effected.
3. Whether from the records of the rower court the accused appellant was not given a fair hearing”
I am of the view that this appeal can determined on the four issued raised or formulated by the Appellant and I will treat them in sequence.
ISSUE 1
WHETHER THE LOWER COURT WAS UNDER A LEGAL OBLIGATION TO READ OVER AND EXPLAIN THE CHARGE TO ACCUSED (NOW APPELLANT) BEFORE ASKING HIM TO PLEAD THERETO.
The learned Counsel to the Appellant AHMED A. ACCANY ESQ., stated that this issue was distilled from ground 2 of the Appeal. He quoted the provisions of section 215 of criminal Procedure Act and the conditions precedent provided therein for a valid arraignment of an Accused’ He relied on the following cases:-
1. NMUOLO VS STATE (2003) 1 NWLR (Pt.808) 493 at 308, 509 FC 510 B-C AND
2. CHUKWU VS STATE (2005) 1 NWLR (Pt.908) 520 at 540 D-H.
He referred this court to page 5 of the record of Appeal concerning what transpired on 3rd day of February 2011 at the lower court. That the record was clear and unambiguous. That the records as contained on page 5 thereof did not show that the charges were explained to the appellant before being asked to plead thereto. He submitted that the failure of the learned trial Judge to so record is fatal to the prosecution’s case and according to him rendered the entire arraignment of the appellant and his subsequent conviction and sentence, a nullity. He cited and relied on the case of CHUKWU v. STATE supra pg. 541 and 549 B.
He also submitted that the failure of the learned trial Judge to read the charge over and explained them to the appellant in the language understood by him was a serious blunder or error for which this Honourable Court is empowered to declare the entire trial of the appellant culminating in his conviction and sentence a nullity. He relied on the cases of CHIEF OF AIR STAFF V. IYEN (2005) 6 NWLR (Pt.922) 496 at 527-528 H-B and UMARU VS STATE (2009) 8 NWLR (Pt.1142) 134 at 142 E-G.
Accanny Esq., informed the court that he was not unmindful of the fact that the trial judge recorded at page 7 of the record which, according to learned counsel was not the date the appellant was arraigned that the charges were read over and explained to the appellant. According to the Appellant’s learned counsel this was in conflict with the printed record of 3/10/2011 on page 5 of the record of Appeal. He submitted that what the learned trial judge did was an afterthought which cannot avail the respondent.
That the appellant’s submission would be better appreciated from the background that counts 1 and 3 of the charges carry a minimum 10 years imprisonment without an option of a fine. He therefore urged this court to hold that the lower court was under a legal obligation to read over and explain the charge to the appellant before asking him to plead thereto.
The learned counsel to the Respondent, M. M. Adamu Esq., while dealing with the method of taking the plea of the Appellant stated that the charges were read and explained to the Appellant in Hausa language one after the other. That he pleaded not guilty to count L but pleaded guilty to counts 2 and 3. He submitted that all the requirements of the law (be it the constitution, the CPA and Judicial precedent) were adhered to by the lower court throughout the trial of the accused/appellant. He relied on pages 4 and 5 of the Record of appeal where according to Adamu Esq., one ALIYU MUNKAILA MOHAMMED a staff of the lower court affirmed to interpret English to Hausa and vice versa. That this meant that the both the charges and every bit of what transpired at the lower court were interpreted to the Appellant in the Language he understood. That the fact that the Accused Appellant pleaded not guilty to the first count of being in possession of Fire Arms clearly showed that the Appellant understood the charges read and explained to him. That he pleaded guilty to 2nd and 3rd counts. That all the authorities cited by Appellant’s counsel are not applicable in the instant case.
On the submission of learned Appellant’s counsel that the Appellant was not represented on the day his plea was taken, Adamu Esq., for Respondent submitted that there is a difference between the taking of an accused plea and heaving a case against him. That besides the fact that the Federal High court has summary jurisdiction, it should be borne in mind that since it is only the accused person that can take his own plea even where his counsel is present and nobody else, that the plea of the Accused taken on 3rd February 2011 was valid. He relied on the case of Effiom v The State (1995) pt.373 page 507 at 531 ration 31. That it is immaterial that the language in which the charge was explained to the accused was not stated in the record, He relied on the case of Effiom v The State (supra) ration 8. That the facts in the case of Umaru v The State (2009) 8 NWLR (Pt.922) supra cited by the Appellant’s learned counsel are distinguishable from the facts of the case on appeal. That the plea of the Accused was not in issue in UMARU’S case. The Respondent urged the court to resolve the issue against the appellant.
The main grouse of the Appellant under issue one is that the lower court did not comply with Section 215 of the Criminal Procedure Act as the record of the said court did not contain any evidence that the charges were read to the Appellant and in the language he understood before pleading to the charges according to the Appellant’s learned counsel.
Now by Section 36(6) (a) (e) of the constitution of the Federal Republic of Nigeria 1999 as amended provisions and conditions precedent to ensure lawful and proper trial of any person charged with criminal offence have been put in place. They are all sine qua Non to all criminal trials in order to further ensure that a defendant in a criminal trial is given fair hearing before a court or Tribunal in the determination of his civil rights and obligations. The provisions of the said Section 36(5) (a) (e) of the 1999 Constitution aforesaid are as follows:-
“36(6) Every person who is charged with a criminal offence shall be entitled to:-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his defence;
(c) defend himself in person or by legal practitioner of his own choice.
(d) Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence”
The above provisions of the constitution are inbuilt and made part of out criminal procedure Act and criminal procedure code depending on whether the offence is/was committed in the southern or Northern part of this country. It is in the right of the above that Sections 215 and 218 of the Criminal Procedure Act, Sections 241, and 242 of the Criminal Procedure Code provide that where any person is charged with criminal offence the charge must be concisely and precisely explained to him in the language he understands before his plea could be taken. Furthermore he is also entitled to an interpreter who can fluently speak his language so that the interpreter can properly read and interprete the charge or the offence with which he is charged and be able to interprete the proceedings to him. The relevant provisions of the constitution aforesaid and criminal procedure laws have received eloquent juridical interpretations in numerous decisions of the apex Court in the land viz:-
1. GOLDEN DIBIE & ORS V. THE STATE (2007) 9 NWLR (PART 1038) 30 at 46 C – H where KATSINA ALU said:
“Section 215 of the Criminal Procedure Law Provides 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 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 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”

This court has, in a number of cases, laid down the requirements of a valid arraignment of an accused. In Tobby vs The State (supra) this court laid the following requirements of a valid arraignment:-
(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;
(c) It must be read and explained to the accused in the language he understands;
(d) 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 duly served therewith.
The requirements are inherent in the provision (Section 215 CPA).”
2. THE STATE VS SALIHU MOHAMMED GWONTO & ORS (1983) 3 SC 52 at 66 where OBASEKI JSC had this say:-
“there can be no doubt about the value and importance of interpretation. Indeed it is the only means of ensuring proper understanding by and participation of the accused persons in the trial proceedings where the proceedings are being conducted in the language they do not understand and enabling justice to be done.
It is my opinion, that it is for these reasons that our laws and constitution made special provisions with respect to interpretation of evidence, statement and other proceedings in Section 241 Section 242 of the Criminal Procedure Code and Section 36 (5) (e) of the constitution.
…..
…..
…..
The need for interpretation does not arise if the accused person understands the language. Afotiori the court will not know that he does not understand the language unless he makes representation about it to the court or judge”.
The position was reiterated and reinforced by the apex court in the case of ANTHONY OKORO VS. THE STATE (2012) 4 NWLR (PART 1290) 351 at 368 B – D per BODE RHODES-VIVOUR JSC who read the lead Judgment thus:-
“Section 33(6) of the 1970 constitution, and/or Section 36(6) (e) of the 1999 constitution ensures that anyone charged with a criminal offence is entitled to have as of right an interpreter in court if he does not understand the language of the court, That is to say, there must be proper interpretation to the accused person of the proceedings. See State v. Gwonto (1983) 1 SCNLR p.142 and it is mandatory that the court supplies an interpreter in cases where one is needed.
The impression of a reasonable person who was present at the trial is the true test of fair hearing. Justice cannot be said to have been done if an accused person who does not understand the English Language (the Language of the court) is denied the services of an interpreter. The entire proceedings would be strange to him and a grave miscarriage of justice would have occurred amounting to a failure of justice.”
In this case on appeal the plea of the Appellant to the three count charge was taken on 3rd day of February, 2011. It is here apposite to quote the entire proceeding of that date so as to discern whether the complaint of the Appellant on issue is well founded. The proceeding(s) read:-
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE BAUCHI JUDICIAL DIVISION
HOLDEN AT BAUCHI
ON THURSDAY, THE 3RD DAY OF FEBRUARY 2011
BEFORE HIS LORDSHIP
HONOURABLE JUSTICE M. T. SALIHU-JUDGE
SUIT NO FHC/BAU/2C/2011
BETWEEN:
THE STATE ………………….COMPLAINT
AND
IBRAHIM JOSEPH…………..ACCUSED
Accused Present and speaks Hausa
A. S. Gumba Esq for the complainant appearing with Esq. Abdullahi Esq., holding the brief of M. M. Adamu Esq.
Aliyu Munkaila Mohammed Affirms to interpret English to Hausa and vice versa.
Complaints counsel:- My Lord, we have filed a complaint against the accused before court
1st Count
A count (sic) I understand the charge. I am not guilty of the charge.
2nd Count.
Accused:- I understand the charge. I am guilty of the charge.
3rd Count:- I understand the 3rd count charge. I am guilty of the 3rd count charge.
Prosecution: My Lord, by virtue of Section 33 of the Federal High Court Act, this court being a summary court of trial we shall be applying for the court to impose sentence on the accused person in respect of the 2nd and 3rd count charges. While we shall be asking for a date to bring our witnesses to prove the 1st charge denied by the accused.
Court:- I shall consider the application of the prosecution at the next date of adjournment. Case is hereby adjourned (sic) to 11-02-2011 for hearing -Accused to be remanded in Prison Custody.
SIGN
JUDGE:
03/02/2011
I am of the view that the learned trial Judge complied with Section 36(6) (e) of the 1999 constitution and Section 215 of the Criminal Procedure Law on 3-2-11. The trial court is not by Section 215 of the Criminal Procedure Law or Section 241 and 242 0f the Criminal Procedure Code expected to record verbatim the requirements of the said sections of the constitution and the laws on his record in order to show compliance with those laws on valid arraignment of an Accused person. To my mind what is expected of a trial court in criminal matters is for the court to ensure that the charge or charges is/are read to the Accused in the language he understands and to be satisfied that the Accused understands the charge read to him. It is a subjective thing. It is for the Judge to be satisfied. It is a matter for his mind and conscience. Failure to record the requirements of Section 215 or other relevant sections of the law referred to cannot vitiate and render the manner in which the plea of the Appellant was taken or recorded in this matter invalid or a nullity. See SAMUEL AYO OMOJU V. THE FEDERAL REPUBLIC OF NIGERIA (2008) 2 SCM 154 AT 178.
In the case of GOLDEN DIBIE & ORS vs THE STATE (2007) 9 NWLR (PART 1038) 30 at 47 C-G the position was succinctly put by KATSINA -ALU JSC (Later CJN Rtd) who said:-
“In Adeniyi vs The State (supra) I had this to say on Section 275 of the Criminal Procedure Law:-
“…thirdly, the appellant understood English. This is evidence in the record. He made his plea and also gave his evidence in English. The omission by the learned trial Judge to state that he was satisfied that the appellant understood the charge is of no moment, where the accused understands the language of the court-English, it becomes unnecessary to record that fact.
It is however, good practice to ask the accused the question whether he understood the charge so read and explained and to record the answer. But the omission to do so would not constitute non-compliance with the constitutional and procedural requirements, I am therefore, in agreement with the respondent that the appellant was properly arraigned”.”
The record bears testimony to the fact the an Hausa Interpreter duly sworn was in attendance and the presumption is clear that the 3 counts were duly read and explained to the Appellant one after the other before he made his plea of Not Guilty to count 1 and Guilty to counts 2 and three respectively. There is nothing on record to show that the appellant was denied any of his rights in his arraignment at the trial court on 3/2/11. Issue one is hereby resolved against the Appellant.
ISSUES 2 AND 4
WHETHER THE APPELLANT WAS ENTITLED TO BE HEARD BEFORE ALLOWING THE RESPONDENT TO AMEND OR ALTER THE CHARGE
& WHETHER FROM THE EVIDENCE AND PRINTED RECORD OF THE LOWER COURT, THE APPELLANT WAS GIVEN A FAIR HEARING.
The above issues were tied to grounds 1, 3 and 5 of the Notice and grounds of appeal. It must be pointed out that the permitted omnibus ground of appeal in Criminal matters is:-
“The verdict is unreasonable or cannot be supported having regard to the evidence”
And Not as the appellant couched his omnibus ground of appeal as:-
“The decision of the Lower court is against the evidence.”See;
(1) ELIJAH OKEZIE VS. QUEEN (1996) 1 at 3
(2) SAKA ATUYEYE & ORS VS. EMMANUEL O. ASHAMU (1987) 1 SC 333 at 344 – 345.
(3) SHEHU VS. THE STATE (2010) 2-3 SCM 15.
The rationale for special manner of casting an omnibus ground of appeal in criminal appeals has been explained in the case of SAMPSON EBENEHT & ANOR Vs THE STATE (2009) 3 S.C, 69 AT 71 per OGEBE JSC who said :-
“I also observe from the identical grounds of appeal filed by the two appellants that the fourth ground which reads:-
“That the verdict of the lower court is unreasonable and cannot be supported having regard to they weight of evidence” is not a proper ground of special in a criminal appeal. Such a ground is meant for a civil appeal, see the case of IBRAHIM vs THE STATE (1991) 4 NWLR (Pt.186) 399 at p.424 where the Supreme Court held as follows:-
“In Civil cases, the question is as to weight of evidence. The inquiry is which of the two sets of evidence on an issue out weighs the other. To ascertain this, they are put on an imaginary scale and weigh together to find out which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such a quality on every material in gradient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge that is end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on a balance.”
Ground one of the appeal is impotent and same is hereby discountenanced. I will consider issues 2 and 4 in the con of Grounds 3 and 5 of the Notice and grounds of the Appeal of Appellant.
Under issues 2 and 4 the learned counsel to the Appellant submitted that the provisions of Section 36 of the Constitution of Federal Republic of Nigeria 1999 as amended and Section 215 of the Criminal Procedure Act encompassed the right to fair hearing guaranteed an accused person in any criminal trial. That any breach is fatal to such proceedings. He relied on the cases of UDO VS. THE STATE (2005) 8 NWLR (PT.928) 521 AT 534 D – H and UWAZURIKE VS. A.G. FEDERATION (2008) 10 NWLR (PT.1096) 444 at 466 B – C. That from the record of proceedings of the lower court particularly at page 5 of the record the Appellant who understood Hausa Language was not given a fair hearing before pleading to the charges against him. That the charges were not read to him in the language he understood. According to the Appellant’s learned Counsel the worse of it all could be found on page 7 of the record wherein he said that count 3 of the charges were altered or amended by correcting what prosecutor described as “typographical error” but that the court below did not deem it necessary to ask the appellant or his counsel whether he was opposing the application to amend. That the Count affected the personal liberty of the Appellant.
The learned counsel also stated that even after the amendment of count 3 of the charge, the court below went ahead to convict and sentenced the appellant without either reading and explaining the new count charge to the appellant or even taking his plea to the new charge.
In his Reply on issues 2 and 4 the learned counsel to the Respondent stated that on the day the case came up that is on 14-2-11, Miss J. Ameh ably represented the Appellant and was in court when the prosecution applied to have the section of the Fire Arms Act corrected. That as a diligent counsel she ought to have told the court whether or not she was opposing whether she was or was not asked by the court. That she should have promptly objected to it that it was because she felt there was no objection that was why she did not object. That the Appellant was not misled nor was he prejudiced by the correction effected. He relied on section 166 of the CPA and the case of OGBOMO V. THE STATE (1985) 2 SC 289 and IJEOMA VS. R. (1962) 2 SCNLR 157.
He urged the court to discountenance the submission of the Appellant’s learned counsel and resolve issue 2 (sic) in favour of the Respondent.
I have earlier on in this Judgment opined that the fundamental rights of the Appellant was not breached the day he took his plea that is 3/2/11 as the proceeding was in tandem with all the conditions precedent laid down in the constitution and the criminal procedure laws for proper arraignment and taking of the Appellant’s plea on the three counts contained in the charge. The trial court was diligent enough to record the Appellant as being present in court and “speaks Hausa”. The learned trial Judge was also conscious of the need to have an interpreter who understood the appellant in court hence it was recorded on page 5 of the Record that one ALIYU MUNKAILA MOHAMMED affirmed to interprete English to Hausa and vice-versa. There was no complaint from the Appellant and his learned counsel Miss J. A. Ameh that the learned trial Judge denied Appellant the right to an interpreter. In all of theses the Appellant and his learned counsel at the trial court must be taken to see nothing wrong with the proceedings at the trial court on 3/2/2011, The Appellant has lost his right to complain on lack of compliance with any purported breach of his fundamental rights. The learned Appellant’s counsel’s submission that:-
“To be precise, the charges were not read over and explained to him in the language he understood”
Is grossly misplaced and not borne out of the Record of Appeal for 3/2/11. The Appellant cannot postulate the issue on appeal having been giving ample opportunity to plead to the three counts contained in the charge without any objection or complain about lack of an interpreter in the proceeding at the court below on 3-2-11. It has become a none issue. See THE STATE vs GWONTO & ORS (1983) 3 SC 62 at 96 – 97 where NNAMANI, JSC of blessed memory who read the leading Judgment had this to say:-
“Applying these principles to the instant case, the Respondents ought to have failed in the court of Appeal in their contention that their rights under Section 33 (6)(e) of the 1979 Constitution were violated. The proceedings in the High court represented by Counsel Mr. Ahinche, There is nothing in the records of the High court (and no further evidence was led on the issue in the court of Appeal.). I think with respect, the point which was missed here is that the importance of the issue of representation lies in the fact that if an (Accused person is represented by counsel such counsel ought to demand his clients right to interpretation or object to any irregularity such as lack of interpretation. If neither he nor the accused objects, the right is lost for all time and certainly cannot be invoked in a Court of Appeal.”
See also the recent cases of ANTHONY OKORO VS. THE STATE SUPRA 315 at 368 E – F per RHODES-VIVOUR, JSC and ELIJAH AMEH OKEWU VS THE FEDERAL REPUBLIC OF NIGERIA (2012) 9 NWLR (PART 1305) 327 at 352 D – H per ARIWOOLA, JSC.
There is no truth in the allegation of the Appellant that the three counts the charges against him were not read and explained to him in the language he understands which is Hausa Language. There is no scintilla of evidence on page 5 of the Record to support the Appellant submission that the charge was not read to him and explained in Hausa language on 3rd of February, 2011. His rights were not infringed on that day having regard to the printed record of proceedings of 3rd day of February, 2011.
On the complaint of the Appellant that his reaction and that of his counsel were not sought on 14th day of February, 2011 when count 3 of the charge was amended by the correction of Section 22 to Section 23 of the Firearms Act and that after the amendment the court failed to read and explained the amended charge or count to the Appellant in the language he understood so that he could plead to the new charge the learned counsel to the Respondent was of the view that the Appellant having been represented on that day by Miss J. A. AMEH both of them must be taken as having no objection to what he described as correction of Section 22 to Section 23 which he considered a minor typographical error mistake. I am of the view that it is necessary to reproduce the entire pages 6 and 7 of the Record of Appeal in order to discover whether the complaints of the Appellant is justified. They run thus:-
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE BAUCHI JUDICIAL DIVISION
HOLDEN AT BAUCHI
ON MONDAY THE 14TH DAY OF FEBRUARY 2011
BEFORE HIS LORDSHIP
HONOURABLE JUSTICE M. T. SALIHU
JUDGE
SUIT NO.FHC/BAU/2C/2011
BETWEEN:
THE STATE…………….COMPLAINANT
AND
IBRAHIM JOSEPH…….ACCUSED
Accused present and Speaks Hausa.
M. M. Adamu Esq SC II for the pros.
J. A. Ameh (Miss) for the accused.
Aliyu Muntaila Mohammed affirms to interprete English to Hausa and vise versa.
Pros: My Lord, the case is adjourned to today for sentence of the plea of the accused on the 2rd and 3rd count charges. I have 2 applications to make. Firstly is to effect a minor typographical error as to the section the accused is charge with. We mistakenly printed Section 22 and not S.23 of the Firearms,Act.
Court: The application of the prosecuting counsel on the typographical error on count three charge against the accused is noted and corrected to read Section 23 also we wish to address the court on the 1st count charge. At the last adjourned date the accused person pleaded guilty to the 2nd and 3rd count charges after pleading not guilty to the 1st count charge. The 1st count charge is being in possession of firearms without licence contrary to Section 3 of the Firearms Act. The accused pleaded to manufacturing same ironically. However, we urge the court to sentence the accused to the charges he pleaded guilty to (i.e. counts 2 and 3). Subject to the convenience of the court we suggest the 02-03-2077 for hearing of the 1st count charge.
Court: The application of the prosecution to convict the accused based on his plea of the 2nd and 3rd count charges read and explained to him on 03-02-2011 is hereby granted.
Accused counsel:- My Lord, we urge the court to be lenient with the accused. He is a first offender. He is a family man with so many defendants, in the alternative to be given option of fine.
Court:- The Accused is convicted upon his on plea of the 2nd and 3rd count charges, Accused is a first offender. Accused gave his age as 45 years. The offence of selling, expose for sale or transferring arms attracts a punishment of imprisonment for a term not exceeding five years, while that of manufacturing of firearms attracts a punishment of a minimum of sentence of ten years. Accused is sentenced to a term of imprisonment of 2 years for the offence of selling. As to the offence of manufacturing there is convict the accused nothing this court can do to the accused than impose the minimum sentence as prescribed by law on the accused. Accused is sentence to ten years imprisonment for the 3rd offence.
Either party not satisfied have the right of appeal to the court of Appeal. As for the 1st count case is adj. to 03-08-2011 for hearing.
SIGN
JUDGE
14/02/2011″
I am of the view that reading the above record of proceedings of 14th day of February, 2011 the trial Judge did not ask nor did he afford the Appellant and his learned counsel opportunity to react to the application of the Respondent to amend or correct Section 22 to 23 of the Firearms Act under which the Appellant was charged and arraigned.
I must say that the change from Section 22 to Section 23 of the Firearms Act consequent upon the application of the prosecutor amounted to an amendment of the charge. The Original Count 3 of the charge reads:
Ibrahim Joseph (M) 45, of Muntokshi village in T/Balewa Local Government Area of Bauchi State within the jurisdiction of the Hon. court sometimes in December, 2010, was found to be manufacturing Fire Arms without license contrary to Firearms Act without license contrary to Section 22 of the FireArms Act Cap. F28, LFN, 2004 and punishable under Section 27 of the same Act.
For reasons best known to the Respondent it now by the amendment granted to it, amended the charge in effect to read:-
“Ibrahim Joseph (M) 45 of Muntokshi Village in T/Balewa Local Government Area of Bauchi State, within jurisdiction of the Hon. Court sometimes in December, 2010 was found to be manufacturing Fire Arms without license contrary to Section 23 of the Fire Arms Cap F.28 LFN 2004 and punishable under Section 27 of the same Act”. (italics mine)
The law is settled that when a charge which is being tried is amended by the prosecution in the course of hearing or trial the Accused must be asked to plead to the charge amended because it constitutes a fresh charge. There is no doubt that under Section 208 0f the Criminal Procedure Code of Northern Nigeria the trial Judge has discretionary powers to alter, add or frame a new charge by way of amendment before Judgment. Once that is allowed the charge must be read and explained to the accused again. See the case of DOMINIC PRINCENT & ANOR Vs The State (2002) 18 NWLR (part 798) 49 at 58 G-H to 69 A-F G per IGUH, JSC who held:-
“I think the point must be stressed that the vital consideration which governs the amendment of a charge whether suo motu by the court or on the application of the prosecution after addresses by counsel but before judgment is that such amendment may be made without injustice to the accused. In this regard, the various sections of the Criminal Procedure Act, Cap.80, Laws of the Federation of Nigeria, 1990, such as section 164 and 165 and those of the Criminal Procedure Code, Laws of Northern Nigeria, such as Sections 208(2), 206, 210 and 211, all of which prescribe the necessary procedure a court shall adopt on granting the amendment of a charge must be strictly complied with.
These, to a large extent, are to ensure that the accused persons neither prejudiced nor suffers any injustice by virtue of the amendment. See R. Vs. Kano and Another, (supra), These procedure which, inter alia, include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto, finding out from the accused whether he is ready to proceed with his trial on such an amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused and, indeed, the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. See Okonofua v. The State (1981) 12 NSCC 233; Okegbu v. The State (1979) 11 SC 1 etc. Accordingly, an amendment to a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code, Cap 30 may be made at the instance of either the prosecution or, suo motu by the court. However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Sections 208(2), 209, 210 and 211 of the Criminal Procedure Code. Those rights, it seems to me, are inbuilt safeguards with a view to ensuring that an accused person by virtue of an amendment is not thereby prejudiced or misled, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully preserved. See too Okosun v. The State (1979) 3 – 4 SC 36.
In the present case it is clear from the record of proceedings that the provisions of Section 208(2), 209, 210 and 211 of the Criminal Procedure Code under which the appellants were charged were meticulously complied with by the learned trial judge.
The prosecution did not help matter in the whole episode of amendment. This is because Section 22 of the Firearms Act is the section dealing with manufacturing or repair of firearms Act. Section 23 only deals with permit for repair of personal firearms. The sections read:-
“22 Subject to the provisions of Section 23 – 25 of this Act, no person shall manufacture, assemble or repair any firearms or ammunition except at a public armory at arsenals established for the purposes of the armed forces with the consent of the President acting in his discretion.
23 The Inspector-general of Police may in his discretion grant a permit to any person to carry on the business of manufacture and repair of the Firearms referred to in Part III of the Schedule to this Act, and shall maintain a register of such permits in force”.
In effect the so called minor typographical error fundamentally changed radically, the complexion and content of the elements of the original charge. The conviction and sentence of 10 years imprisonment imposed on the Appellant on COUNT 3 of the charge only is a nullity as the Appellant was not asked to plead to the new charge or count as amended by the order of the lower court.
This finding does not affect the two years imprisonment imposed on the Appellant on COUNT 2 of the three count charge. This is because he pleaded guilty to count two of the charge and the lower court was perfectly right in proceeding to convict the Appellant and was in order in sentencing the Appellant. The Appellant had confessed and admitted the said count 2. He cannot have that sentence set aside on account of any irregularity in count 3 that was amended without a fresh plea. See (1) RAYMOND S. DANGOTE vs. CIVIL SERVICE COMMISSION PLATEAU STATE & ORS (2001) 9 NWLR (PART 717) 132 at 159 E- G per KARIBI-WHYTE JSC who held:-
“I do not think the provision of the Law and effective administration contemplates or admits the exercise of such circuitous route to the discipline of admitted wrong doings.
It is established law that after a plea of guilty by the accused before the court exercising jurisdiction in respect of criminal offences, the court must formally proceed to conviction without calling upon the accuser to prove the Commission of the offence by establishing the burden of proof as required by law – See Section 218 of the Criminal Procedure Act. See also R. v. Wilson (1959) SCNLR 462; (1959) 4 FSC 175. This is because the admission of guilt on the part of the accused satisfied the required burden of proof.”
The offence involved in this case is a non-capital offence. Therefore the plea of guilty by the accused amounted to throwing the towel and there is no need for the prosecution to call any evidence. Since it is an admission of guilt made in open court it is a confession within the meaning of Section 28 of the Evidence Act 2011 and it became relevant under Section 29(1) of same Evidence Act. (Section 27 and 28 of Evidence Act LFN 1990). It is a judicial confession and the lower court was justified in convicting him and was right in inflicting the sentence upon the Appellant. SUMMAYA ISAAH TORRI VS NATIONAL PARK SERVICE OF NIGERIA (2011) 8 SCM 217 at 227 H TO 229 A where I. T. MOHAMMAD JSC has this to say:-
The position of the law, as is clear from Section 151(2) of the Criminal Procedure Code set out above, is that where the offence for which an accused person is charged is not a capital offence, the trial court has the discretion to convict the accused. The plea of guilty made by the Appellant is as good as a judicial confession or admission of commission of a crime. Section 27(1) of the Evidence Act Cap 112 of the Evidence Act (Cap E14, 27(1) of the Evidence Act Cap.112 of the Evidence Act (Cap.E74, LFN, 2004) defines confession to be an admission made at any time by a person charged with a crime stating or suggesting the inference that he committee that crime. Where there is that kind of admission of guilt, this court, in a plethora of cases held that the legal burden of proof no longer arises, and no burden of proof rests on the accuser, it having been discharged by the admission of the accused. see: the dictum of Karibi Whyte, JSC, in Dangote v. Civil Service Commission, Plateau State & Ors. (2001) FWLR (Part 50) at page 1671 – B, (2001) 5 SCM, 59; Adetunji v. The State (2001) 13 NWLR (Part 730) 375. See further: Akibu Hanssan v. The State (2001) 7 NSCOR 107, (2001) 11 SCM, 100; Gonzie v. The State (2003) NSCQR 663, (2002) 12 SCM, 143. This is what the trial court exactly did, in affirming that practice, the court below stated that the trial court duly discharged the legal burden placed on it in this regard. It went further to hold that; that was in complete compliance with the constitutional and procedural requirements. The arraignment and trial of the appellant before the trial court was both a judicial and an official act, it was carried out in a manner which was substantially regular and the appellant has failed to rebut this presumption by showing that he did not comprehend the procedure employed at the trial or that he was denied legal representation or opportunity to Present a defence”‘
There cannot be any allegation of lack of fair hearing concerning count 1 and count 2 since the appellant voluntarily pleaded not guilty to count land guilty to count 2. count 2 was adequately read to him and explained to him in Hausa Language before he entered his plea of guilty’ see SUNDAY OFFOR & ANOR V. THE STATE (2012) 18 NWLR (PART 1333) 421 AT 444 F-H to 445 A-A-D per OGUNBIYI JSC. who said:-
“For purpose of recapitulation and even the risk of repeating myself, I wish to restate that the proceedings at the trial court which was confirmed by the lower court were consistent and did not deviate from the laid down principles of law. In other words the charges were read in open court and explained in detail to the accused/appellants. They were asked by the trial court whether they were guilty or not. They both responded in the affirmative, that is to say, that they were guilty and following which their pleas of guilty were recorded. Thereafter the appellants admitted the facts of the case as narrated by the learned counsel for the state in his summary submission. The learned trial Judge, consequent upon the submission by the counsel and in exercise of his discretion as provided for in Section 187(1) and (2) of the Criminal Procedure Code proceeded to convict the accused/appellants on their pleas of guilty, The authority enunciated in the case of Amanchukwu v. F.R.N. v. (2009) 8 NWLR (Pt.1444) 475 is relevant in support wherein this court per Ogbuagu J.S.C. had this to say at page 488 para C:-
“It is now settled that a plea of guilty is valid if made (as in the instant case leading to this appeal) in a very unambiguous and unequivocal way and the same is received by a trial court/tribunal not laboring under the misapprehension of what the law is.”
The Learned trial Judge in the case at hand and from all deductions was not, to hold, laboring under the misapprehension of what the law was, contrary to the submission by the appellants counsel. The case of Okene v. Federal Republic of Nigeria (2005) All FWLR (Pt.254) p.858 at 872 – 873 is again relevant in point.
On the allegation by the appellants alleging the denial of fair hearing, I hasten to add that the attitude portrays that of a drowning man who in the midst of the sea, for purpose of survival would hold unto anything, even the waves. This I say because it is clear and as revealed on the record of appeal, reproduced earlier in the course of this judgment, that the appellants, unambiguously and unequivocally admitted the offences levied against them. See again the case of Amanchukwu v. F.R.N. supra at pages 486 – 487”
Therefore the conviction and sentence of two years imprisonment imposed on the Appellant by the trial court stands. It is hereby affirmed. Issue 2 & 4 argued together are resolved in favour of the Appellant only to the extent and that the lower court did not afford him opportunity of being heard before the application to amend Count 3 of the three court charge was granted.
ISSUES
WHETHER THE LOWER COURT AFTER ALTERING OR AMENDING THE CHARGE WAS REQUIRED UNDER THE LAW TO READ AND EXPLAIN THE AMENDED CHARGE TO THE APPELALNT AND THEREAFTER ASK HIM TO PLEAD THERETO
(DISTILLED FROM GROUND 4).
The learned counsel to the Appellant submitted that any alteration by way of addition or deletion to a charge is an amendment. He relied on FUNDAMENTALS OF CRIMINAL PROCEDURE LAW IN NIGERIA BY BOB OSAMOR, PUBLISHED IN 2004 p.219. That on page 6 of the Record the Respondent applied to alter or amend the charge by correcting a typographical error. That the court on page 7 of the Record granted the application. That the learned trial Judge has to comply with Section 164 of the Criminal Procedure Act having allowed the amendment by reading over and explaining the new count charge to the appellant and asking him to plead thereto. He relied on the case of STATE V. OLAWUJI (2003) 14 NWLR (Pt.839) 138 AT 151 RATIO 14 and the case of MUHAMMED v. THE STATE (2007) 13 NWLR (Pt.1050) 186 at 194 RATIO 14. He submitted that failure to take a fresh plea rendered the entire proceedings null and void relying on the case of OKEGBU VS THE STATE (1979) 11 SC.1 and R. V. ERONIN 14 WACA 366. He urged the court to hold that the conviction and sentence of the Appellant by the lower court are null and void.
The learned respondent counsel replied to this issue of amendment and the need to take fresh plea from the Appellant under his own issue 2. That on the day the Respondent made application to correct the section of the Firearms Act Miss J. AMEH was in court representing the Appellant and that whether she was asked or not she ought to have promptly objected if she was opposing the Appellant was not in any way misled or prejudiced by the correction of the section. He relied on Section 166 of the criminal Procedure Act and the case of OGBOMO v. THE STATE (1985) 2 SC 289 AND IJEOMA v. r (1962) 2 SCNLR 757. He urged the court to discountenance the submissions of the Appellant on issue 3.
There is no doubt that this issue clearly overlapped with issues 2 and 4 argued together which issues have just been dealt with in this judgment. I agree with the learned counsel to the appellant that the lower court has constitutional and statutory duties to ensure that the Appellant was given another opportunity to plead to the new count 3 after the grant of the amendment sought to count three by the prosecution see the case of JOHN TIMOTHY VS THE FEDERAL REPUBLIC OF NIGERIA (2013) 4 NWLR (PART 1344) 213 AT 235 G – H TO 236 A – C per RHODES-VIVOUR JSC who said:-
“I must consider Section 215 and 218 of the Criminal Procedure Act and the correct procedure to be followed. At the commencement of a criminal trial there must be strict compliance with the provisions of Section 215 of the Criminal Procedure. That is to say:-
(a) The accused person must be placed before the court unfettered unless the court other-wise directs, e.g. he may be fettered if the Judge is satisfied that the accused shows signs of being violent.
(b) The charge must be read over and explained to the accused person in the language he understands by the Registrar of court or other officer of the court.
(c) The accused person must be called upon to plead to the charge.
The above requirements are mandatory and must be strictly followed. If the charge is amended during trial the procedure must again be complied with. The procedure under section 215 of the Criminal Procedure Act guarantees of fair trial of the accused person. Failure to satisfy any of the above (a) – (c) would render the trial no matter how well conducted defective and declared a nullity by an appeal court. See:
Josiah v. State (1985) 1 NWLR (Pt.1) p.125
Eyorokoromo & Anor v. State (1979) v. 12 NSCC p.61, (1969) 6 – 0 SC 3;
Kajubo v. State (1988) 1 NSCC (1988) Vol. 19 NSCC p. 475, (1988) 1 NWLR (Pt.73) 721.
Effiom v. State (1995) 1 NWLR (Pt.373) p.507.
Consequently issue 3 is hereby resolved against the Respondent in favour of the Appellant.
In conclusion the appeal of the appellant succeeds in part. The appeal succeed in respect of the amendment carried out and allowed by the trial court on Count 3(three) of the three Count charge only.
The appeal fails in respect of all other issues. The conviction on Count 2 and sentence of 2 years imposed on the Appellant on Counts 2 of the three count charges by the Lower Court is hereby affirmed.
The trial of the Accused on Counts 1 and 3 of the three Count charge is remitted to the lower court for trial before another judge to whom the Chief Judge of Federal High Court may assign the case on the remaining Counts 1 and 3 of the three count charge.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had, before now, read the draft judgment of my learned brother, IGE, J.C.A. I am in full agreement with his reasoning and conclusions; which I hereby adopt as mine. I abide by the order made in the lead judgment by my noble Lord, Ige, J.C.A.

Appearances

H. Ibrhaim Esq. with Ali Shehu Esq., and A. Yusuf Esq.For Appellant

AND

Ben Ogbuchi Esq. Onyeka Iroh (Mrs) Esq., and F. O. Enejor Esq.For Respondent