DEBORAH ADEWOLE v. THE STATE (2013)

DEBORAH ADEWOLE v. THE STATE

(2013)LCN/6583(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/I/129/2013

RATIO

CRIMINAL PROCEEDING: INGREDIENTS OF AN ARRAIGNMENT

A trial court cannot have legal effect if it does not start with a statement to the accused person and a response or reaction of the accused to such opening statement clearly recorded. That basic opening statement or activity is what is termed in law “arraignment”. The accused person must be properly arraigned before a court of law and be invited to state his response to the statement description/explanation of the nature of the offence for which he has been summoned into the temple of justice. Oputa JSC set out the mandatory initiating procedure in the case of Kajubo v. The State (1988) 1 NWLR (Pt.73) p. 721. (See also Chukwu v. State (2005) 1 NWLR (pt. 908) p. 520 among several other cases.

When proper arraignment of an accused is done the fact needs not be enquired into because the fact of arraignment should be palpable on the face of the record. If the answer of the accused person is not recorded, then there must be recorded, the reason of the absence of a response by the accused person. If the accused person is physically not present in court, then an important component of the trial is missing and the trial should not proceed unless there is a legal explanation for the absence of the accused person. The relevance of records cannot be over-emphasised in a criminal trial. Records of proceedings put to rest, the nagging question of proper or non-arraignment. PER MONICA B. DONGBAN-MENSEM, J.C.A

JUSTICES:

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

DEBORAH ADEWOLE – Appellant(s)

AND

THE STATE – Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): The Appellant was charged along with one Kehinde Adisa in the Oyo State High Court, holden at Ibadan for the offence of conspiracy to murder.
They were said to have conspired to murder one Morufu Olaniyan and thereby committed an offence contrary to and punishable under Section 517 of the Criminal Code, Cap. 38 Vol. II, Laws of Oyo State of Nigeria, 2000. It should be pointed out that the said Kehinde Adisa was charged for the substantive offence of murder.

The case of the prosecution against the Appellant is that, on the 16th day of November, 2005, the Appellant and others including one Sunday Babalola, who are members of a Vigilante Group under the Chairmanship of one Alhaji Kolapo in the Isale Bode Area of Ibadan, Oyo State, went round the area to collect dues from residents. That when they came to the family house of Monsuru Olaniyan (deceased), a quarrel ensued between family members of the deceased and the Appellant due to the refusal of the said members to pay their dues. That in the process the Appellant’s dress was torn, but with the intervention of the Vigilante Group Chairman, Alhaji Kolapo, peace was restored, as the chairman gave the deceased’s family an extension of time to pay the said dues, while promising to replace the Appellant’s torn dress.

It is also the case of the prosecution that, at about 11.30 pm of the said 16/11/2005, PW2, PW3, PW4, PW7 and PW8, who are all members of the deceased’s family, saw the appellant pointing at or showing the co-accused (Kehinde Adisa) the deceased’s family house. That after showing Kehinde Adisa the house, the Appellant requested the said Kehinde Adisa to “deal with them”. That between the hours of 1.00 – 2.00 am on the 17/11/2005, the said Kehinde Adisa came to the deceased’s family house and attacked them and in the process Monsuru Olaniyan (deceased) was shot with a gun and died shortly thereafter.

The Appellant’s version is that, she was a member of the vigilante committee charged with the responsibility of collecting dues. That at about 9.15 pm of that fateful day, a member of the Group, one Sunday Babalola complained that the vigilante guards were complaining that they have not been paid their wages. That upon receipt of the complaint, the Appellant, Islaka Olaniyan (a member of the deceased’s family), Baba Zainab in company of Sunday Babalola went round the houses of some of the contributing members to collect the dues, so that the guards will be paid, and that as a woman, the Appellant was allowed to enter and collect the dues from houses where the women were in purdah.

The Appellant stated further that, when she returned, she met a fight in the deceased’s house between her colleagues and some members of the deceased’s house hold who were in default of payment of the dues. That when they got to the deceased’s part of the family house, the deceased’s wife told them that the deceased was not at home, and proceeded to pounce on the Appellant on the ground that she did not like the manner the Appellant talked about her husband. In the process, the Appellant’s dress was torn and that it took the intervention of the chairman of the vigilante committee, before she could be let off. The Appellant stated that she then went home. That shortly thereafter, the co-accused (Kehinde Adisa) who had, at that time reported for duty went to inquire from her what transpired, and that it was in the process of explaining to him that she pointed to the deceased’s family compound. The Appellant stated further that, she then went to bed immediately thereafter, but at about 1.40 am, she heard a gunshot and thought armed robbers had invaded the area. That at day break, her house was attacked so she had to run with her children to stay with her mother at Akuro Popoyemoja, and that it was after she returned to the area that she saw some women packing her properties to the deceased’s family house. That her mother then advised her to report to the police and when she reported at Mapo Police Station, she was directed to the State C.I.D, where she was arrested and accused of conspiring to kill the deceased, Morufu Olaniyan.

At the trial, the prosecution called ten (10) witnesses and tendered some Exhibits including two guns and the extra-judicial statement of the Appellant. The Appellant testified in her defence, but called no other witness. At the close of evidence, counsel filed and exchanged written addresses which they adopted as their addresses on the 18/11/2011.
Thus, in a considered judgment delivered on the 3/2/2012, the learned trial judge found the Appellant guilty of conspiracy and sentenced her to seven years imprisonment with hard labour. It is against her conviction that the Appellant filed this appeal.

The Notice of Appeal which can be found at pages 120-125 of the Record of Appeal, was dated 09/4/2013 and filed the same day, pursuant to the order of this court made the 08/4/2013. The Notice of Appeal consists of four (4) Ground of Appeal, which are hereunder reproduced without their particulars as follows:

Ground 1
The learned trial judge erred in law when he entertained proceedings in this case, heard and determined the case against the Appellant without any arraignment of the Appellant on the record of the trial court.

Ground 2
The trial court erred in law when it held thus:

“From the statements of the two accused persons there is certainly common intention between them. The second accused confirmed taking the first accused to the house of the Olaniyans around 10:30 pm after the initial quarrel. The first accused also said in his statement that the second accused showed him the house of the Olaniyans around 9:30 pm. These statements made by the two accused were admitted without any objection… In her own evidence in chief, the second accused said the first accused came to her house around 10 pm and she told him what happened. She also agreed that she showed the first accused where she fought, that is the Olaniyan’s house….. From the pieces of evidence led by both the prosecution and the accused persons, I hold that sufficient grounds exist to infer conspiracy in the present circumstances between the first and the second accused persons. I therefore find each of the 2 accused persons guilty as charged in respect of count one”; and thereby convicted the Appellant of the offence of conspiracy to murder.

Ground 3
The learned trial judge erred in law by holding that Exhibit C, the purported confessional statement of the Appellant, which the Appellant retracted at the trial, met the six – parametre test laid down in R v. Sykes (1913) 8 C.R. App. 233 and therefore proceeded to rely on the said Exhibit to convict the Appellant when the said Exhibit neither met the six – parametre test nor the established truth test laid down by law.

Ground 4
The decision of the High Court is unreasonable and cannot be supported having regard to the evidence led at the trial.

In compliance with the Rules of this Court, the Appellant and the Respondent, filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments was not dated but filed 22/4/2013. In the said brief of arguments, three issues were distilled for determination from the four grounds of appeal as follows:-

1. Whether in view of the record of proceedings, the Appellant was arraigned before she was tried, convicted and sentenced on the charges of conspiracy to murder preferred against her.
(Ground 1).

2. Whether the learned trial judge was right in relying on Exhibit C (as a confessional statement) and or for purportedly relying on the evidence of the Appellant at the trial to find her guilty of conspiracy to murder. (Ground 3 and 4).

3. Whether having regards to the evidence adduced at the trial, the Prosecution proved the guilt of the Appellant beyond reasonable doubt. (Ground 2, 5 and 6).

The Appellant also filed a Reply Brief to the Respondent’s Brief of Arguments. It was dated and filed the 14/10/2013.

The Respondent’s Brief of Arguments is dated the 28/06/2013 and filed same date. It was deemed filed the 8/10/2013. Therein, two (2) issues were curled for determination as follows:

(a) Whether the trial and conviction of the Appellant at the trial court was based on proper arraignment and plea.

(b) Whether or not the court below was right in holding that the prosecution proved its case of conspiracy against the Appellant beyond reasonable doubt, as contained in Section 135, Evidence Act, Laws of Federation of Nigeria, 2011.

A careful reading of the issues formulated by both sides would show that issues 1 from both sides are similar in context and scope. However, issues two and three formulated by the Appellant have been adequately subsumed by the Respondent’s 2nd issue. In that respect, I shall determine this appeal on the issues formulated by the Appellant, but shall consider issues 2 and 3 together, as they correspond with issue 2 raised by the Respondent. I now begin by considering issue 1.

On the said issue 1, which questions whether the Appellant was on the record of appeal, arraigned by the trial court, before she was tried and convicted of the offence of conspiracy to murder. Learned Appellant Counsel drew our attention to the notes of the trial court at pages 17-26, 27-29, 30-32, 35-36, 37-39, 40-45, 68 and 118 of the record. Learned Counsel then submitted that, nowhere in the said record, was it shown that the Appellant and her co-accused were arraigned or their pleas taken before they were tried, convicted and sentenced by the trial court. That the importance of arraignment of an accused person in our criminal justice system was stressed in the case of Simon Edibo v. The State (2007) 5 S.C. p. 138 at 147 paragraphs 5-30, Yusuf v. The State (2011) 18 NWLR (PT. 1279) P. 853 at 879 – 880 paras G-D, 881 paragraphs D-F; Yerima v. The State (2010) 14 NWLR (pt. 1213) p. 25 at 44 – 45 paragraphs F-B; Sanmabo v. The State (1967) N.M.L.R. p. 314; Alake v. The State (1991) 7 NWLR (PT. 205) P. 567 and The State v. Madokolu (1972) E.C.S.C.R. P. 426. That in the instant case, no arraignment of the Appellant was conducted before she was tried, convicted and sentenced. It was therefore submitted that this is fatal as it amounts to a fundamental vice which goes to the root of the entire proceedings and thus, a nullity. In other words, that the omission or failure renders the entire proceedings, conviction and sentence of the Appellant a nullity.

Learned Appellant’s Counsel also drew our attention to page 2 of the judgment of the trial court (page 70 paragraph 2 of the records) to submit that, contrary to the statement of the learned trial judge at page 70 paragraph 2 of the record, there is nothing on record of proceedings of the trial court, to show that any pleas of the kind elaborately described by the learned trial judge ever took place, either prior to or after the amendment of the charge preferred against the Appellant. It is also the view of learned counsel that, from the manner the trial court elaborately described the purported arraignment and taking of plea, it is clear that he noticed that there was no record of any arraignment, fresh or old, and therefore resorted to using the judgment forum to supply the missing link. That, it is not from the judgment that the law requires evidence of arraignment, but from the court notes. The case of Yusuf v. The State (supra) was relied upon. It was therefore contended that the attempt by the learned trial judge to smuggle in, evidence of arraignment in his judgment, when the record of proceedings do not show that, is an afterthought. We were then urged to discountenance the statement of the learned trial judge.

Learned Counsel for the Appellant further contended that, assuming (which he did not concede) that, any arraignment was done as described by the trial court, in so far as the record of proceedings do not bear out that event, the best that can be said is that, such arraignment must have been conducted in chambers. If that is so, learned counsel submitted that, it will not avail the prosecution as it will have the same effect of nullifying the entire proceedings leading to the conviction of the Appellant. The case of Edibo v. The State (supra) was cited in urging us to resolve this issue in favour of the Appellant.

Learned Counsel for the Respondent contended that, the submission of Appellant that her plea was not taken is reckless and unsubstantiated if the record of appeal is carefully perused. Learned counsel drew our attention to pages 54 and 70 of the records of appeal, to submit that there is no mincing words that the trial court was satisfied that there was proper arraignment and the Appellant understood the charge against her, to which she pleaded not guilty. It was further contended that, the fact that it was not recorded expressly in the record of the trial court that the Appellant pleaded to the charge which was read to her, will not in any way vitiate the trial and conviction of the Appellant. That there is a presumption of law that judicial and official acts have been rightly and regularly done until the contrary is proved.

Learned counsel for the Respondent cited the case of Okeke v. State (2003) 15 NWLR (PT. 842) P. 25 at 102-103 paragraphs D-B to submit that the above stated principle of law becomes more relevant and applicable in the instant case, moreso, that the Appellant was represented by counsel throughout her trial and no objection was raised as to the arraignment of the Appellant. That such objection was also not raised in the written address of counsel. We were then urged to hold that the trial of the Appellant was conducted and based upon her plea taken before the trial court.

Responding on points of law in the reply brief, learned counsel for the Appellant contended that the submissions of the Respondent on the issue of arraignment should not be countenanced because, the issue before this court is whether having regard to the records, there was any arraignment at all of Appellant on either the original or amended charge.
That from the record of appeal, and most fundamentally, the court notes of the trial court, the Appellant was never arraigned before the trial commenced leading to the conviction of the Appellant. He relied on the cases of Kajubo v. State (1988) 1 NWLR (pt. 73) p. 721 and Eyorokoromo v. State (1979) 6-9 S.C. p. 3 to submit that without a valid arraignment, no trial in law would have commenced and that no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and therefore, null and void. That the case of Okeke v. State (supra) cited by learned counsel for the Respondent is not apposite to the facts of this case, in that, in Okeke’s case, the Appellant’s case therein, was that the arraignment was not properly done, in that the records of that court did not show that the charge was read and explained to the Appellant in the language which he understood and to the satisfaction of the court as required by Section 333 of the Criminal Code Law of Anambra State. The Supreme Court therefore applied the presumption of regularity to find that, there was nothing on the record to suggest that the charge was not read and explained to the Appellant in the language understood by the accused and that the charge was not read to him in the language he understood.

Learned counsel for the Appellant further submitted that the case of Sani V. State (2000) 1 NWLR (pt. 642) p. 520 remains the correct position of the law on the fundamental issue of arraignment of an accused person on any criminal charge. The cases of Ajile v. State (1999) 9 NWLR (pt. 619) p. 503; Kajubo v. State (1988) 1 NWLR (pt. 73) p. 721 at 737 and Yusuf v. State (supra), were cited to submit that, nowhere in the printed record is it shown that the charge, both original and amended, was read to the Appellant and his plead taken thereon. That reference to same in the body of the judgment by the learned trial judge is an afterthought and should be discountenanced.

Now, Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides 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;”

Similarly, Section 215 of the Criminal Procedure Act stipulates that:-

“215. 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.”

In the case of Yusuf v. State (2011) 18 NWLR (pt. 1279) p. 853, Rhodes-Vivour, JSC stated at page 881 paragraph G-H of the Report that, the provisions of Sections 36 (6) (a) of the 1999 Constitution and 187 (1) of the Criminal Procedure Code or 215 of the Criminal Procedure Act are provided to ensure a fair trial for an accused person. That it is therefore, the primary responsibility of the trial judge to see to it that there was compliance. Similarly in Lufadeju v. Johnson (2007) 8 NWLR (pt. 1037) p. 535 at 555 paragraphs C-H, the Supreme Court held that the requirements of a valid arraignment have been specifically provided so as to guarantee the fair trial of an accused person and to safeguard his interest at the trial, failure of which may render the whole trial defective, null and void. See also Dibie v. State (2007) 9 NWLR (pt. 1038) p. 30 and Yerima v. State (2010) 14 NWLR (pt. 1213) p. 25 at 44-45.

In the interpretation of Sections 36 (6) (a) of the 1999 Constitution (supra) and Section 215 of the Criminal Procedure Act, the Supreme Court has held severally that, by the combined effect of the two provisions, an arraignment consists of charging the accused who shall be present in court unfettered, and reading over and explaining the charge to him in the language he understands to the satisfaction of the court; thereafter his plea is taken. That the explanation of the charge to the accused in the language he understands is to ensure that the accused understands the essential elements or ingredients of the offence charged and the factual situations resulting in or giving rise to the offence charged. The locus classicus on the issue of arraignment is the case of Kajubo v The State (1988) 1 NWLR (pt. 73) p. 721.Â Â Therein, Oputa, JSC in his concurring judgment stated at page 737 of the Report as follows:-
“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 court are not merely cosmetic; they are not semantics – NO. They are provision considered necessary to ensure that the accused understands and appreciates what is being alleged against him, to which he is required to make a plea. 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 follow and comprehend the language of the court. For these reasons, our criminal jurisprudence 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;
(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 language…”
Similarly, in the case of Chukwu v. State (2005) 1 NWLR (pt. 908) p. 520, it was held that, under the Constitution and the Criminal Procedure Act or Law, a proper and valid arraignment consists of the following:
“(a) The accused person should be present before the court unfettered;
(b) The charge or information should be read over to the accused in the language he understands,
(c) After the charge or information has been read over to the accused in the language he understands, the charge shall be explained to him in such a way that he is acquainted with all the essential elements of the offence charged and the facts that give rise to the offence charged;
(d) The trial court should also satisfy itself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for.”
It follows therefore that, the requirements of Section 36 (6) (a) of the Constitution (supra) and Section 215 of the Criminal Procedure Law of Oyo State are mandatory in nature and must be strictly complied with. All the above stated conditions must co-exist and be complied with in order to attain a proper and valid arraignment of an accused person. None compliance with any of these conditions will therefore render a trial, no matter how well conducted a nullity. See Solola v. State (2005) 2 NWLR (PT. 937) P. 460 at 482 -483 paragraphs D-H; Udo v. State (2006) 15 NWLR (pt. 1001) p. 179 at 189 – 190 paragraphs D – C and Udo v. State (2005) 8 NWLR (pt. 928) p. 521 at 535-536 paragraphs H – C.

It is not only mandatory that the trial court must comply strictly with the procedure on arraignment, but it is essential that the facts of compliance must be clearly shown on the record. It must be clearly and visibly shown or depicted on the record, the action taken by the trial court as evidence of such compliance. See Chukwu v. State (supra) at p.40.
Thus in the case of Kajubo v. State (supra); Wali, JSC stated that:-
“The conditions laid in Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution, are not for formality sake but are specifically provided to guarantee the fair trial of an accused person. The trial judge has a bounden duty to secure compliance with the provisions of both Section 215 of the Criminal Procedure Law and Section 33(6) (a) of the Constitution by showing that in his record.”
It was also held in the case of Arua Eme v. The State (1964) 1 All N.L.R. p.416 that, a bare or bald statement of the trial court on record that “the rights of the accused are explained to him” is not enough. That, not only shall the court record show clearly what the trial court has done, whatever rights of the accused person that have been explained to him, must be fully recorded. Thus Ogunbiyi, JCA (as he then was) stated in Chukwu v. State (supra) at p.541 paragraphs F – G that:-
“Having regard to foregoing authorities, it is certain and obvious that “regularity” or “representation by counsel”, as submitted by learned respondent’s counsel, is not the paramount guiding principle.
What is of an indispensible necessity, however, is a clear cut and visible action taken by the trial court and which same must show and depict on the face of the record as evidence of compliance”.
Similarly, I. T. Muhammad, JSC in his contribution in the case of Olabode v. State (2009) 11 NWLR (pt. 1152) p. 254 at 276 paragraphs C stated that:
“… I think …, that there is a duty on the part of the trial court to ensure strict compliance with the provisions of the laws and plainly showing so on its record. See further Kajubo v. State (1988) 1 NWLR (pt. 73) p. 721, Alake v. State (1991) 7 NWLR (pt. 205) p. 567 at 589; Okon v. State (1991) 8 NWLR (pt. 210) p. 424; Eyorokoromo v. State (1979) 6-9 S.C. p. 3.
It is also a requirement of the law that arraignment shall be conducted in open court and shall consist of reading the information or indictment to the accused person or stating to him the substance of the charge and calling on him to plead thereto.”

In Yerima v. State (2010) 14 NWLR (pt.1213) p.25 at 45, the trial was declared a nullity because, there was no record that the charge was indeed read out and explained to the Appellants before their plea was taken.

From the authorities cited above, it is clear to me that, it is not only mandatory that the trial court must comply strictly with the procedure on arraignment, the trial court must also ensure that the fact of compliance is depicted or shown on the record. See also Effiom v. State (2003) 3 A.C.L.R. p.192 at 321; Omoteloye v. State (2005) 4 A.C.L.R. p. 478 at 490 – 491.

It is trite law and as enshrined in Section 168 of the Evidence Act, 2011, there is a presumption of regularity in favour of any judicial or official act done substantially regular. It is presumed therein that formal requisites for the validity of such judicial or official act had been complied with. Thus, where the issue in an appeal turns on whether the trial court complied with the requirements on arraignment of an accused person, it is to the notes of the trial judge as captured in the record of proceedings of that court that an appellate court will have recourse to.

Certainly the court notes are not expected to be a verbatim report of all that was said or took place at the trial, such notes should however, not leave out the essential matters of the proceeding in the particular case. In other words, the court note is expected to record the essential or fundamental requirements of the trial, especially in a criminal trial. One of such fundamental or essential matters required to be reflected on the court notes, is the fact of arraignment. The court note should therefore have clearly and unequivocally reflected thereon that the accused person was indeed arraigned before hearing of the case commenced or where the charge was amended, that after such amendment, the accused person was called upon to make a plea on the amended charge.

I have been able to peruse the entire record of appeal. Upon such perusal, I am unable to see or find where it is recorded that the appellant was arraigned or her plea taken before evidence in the case was gone into.
In other words, the court notes as contained in pages 17 – 45 of the record of appeal does not show at all that the charge was read and explained to the appellant in the language that she understands, to the satisfaction of the trial judge and the Appellant’s plea taken. In fact the record of appeal shows at page 54 of thereof that, the trial court granted leave to the prosecution to amend the charge. The learned trial judge had ordered as follows:-

“Order granted as prayed. The prosecution is given till the close of business today to file the Amended charge…. Case is adjourned to 15/7/2011 for fresh plea of the accused to be taken.”

The said order was made on the 1st day of July, 2011. There is however nothing on the record to show, apart from filing of Written Addresses of Counsel and the subsequent judgment of the court that any other proceeding was conducted by the court where a fresh plea of the Appellant was taken as ordered by the court by the order of 1st July, 2011. The fact that the plea of the appellant was taken on the amended charge is a fundamental requirement which ought to have been depicted or shown by the record, but it was not. Indeed there is nothing on the record to show whether the original charge was read to the Appellant and her plea thereon taken. The learned trial judge merely recorded in the course of writing judgment that the charge was read and explained to the accused and that she pleaded not guilty. For clarity this what the learned trial judge said at page 70 lines 7 – 13 of the record of appeal:-

“Leave was granted the prosecution to amend the charge. The charge was then read and explained by the court’s Registrar to the accused persons to the satisfaction of the court. The 2 accused then made a fresh plea. The first accused pleaded not guilty to the two count charge. The second accused pleaded not guilty to the first count of conspiracy to murder.”

This elaborate picture painted by the learned trial judge is not depicted on the record of appeal. When the matter was adjourned to the 15/7/2011 for fresh plea of the accused to be taken, there is no evidence in the record to show or tending to show that the court sat on the 15/7/2011 or any other date where a fresh plea of the Appellant was taken. The ultimate conclusion I have arrived at is that there was no arraignment of the appellant at all, at least as the record has revealed. It is not a case of improper arraignment of the Appellant but a total failure or want of arraignment. The law is that, where there has been failure to comply with the conditions stipulated for a proper arraignment under the law, the effect is that, the trial is a nullity. Thus, the trial, conviction and sentence of the Appellant without arraignment known to law or in accordance with the law, renders the proceedings null and void and without effect whatsoever. In Chukwu v. State (supra), Ogunbiyi, JCA (as he then was) concluding the lead judgment in that case held at page 543 paragraphs C – D, that:

“The record of appeal before us has clearly fallen below the expected standard of compliance. The purported formality as reproduced at page 29 (supra) cannot with due respect hold to sustain the trial, conviction and sentence of the Accused/Appellant as rightly submitted by her learned counsel. Consequently and contrary to the submission by learned Respondent’s counsel, I hold that the arraignment of the Accused/Appellant was grossly incompetent and thus vitiating and rendering the entire trial, conviction and sentence a nullity. Same therefore is accordingly set aside.”

In the same vein, I hereby hold that the trial, conviction and sentence of the Appellant without an arraignment has vitiated the entire trial, conviction and sentence. The entire proceeding has therefore been rendered null and void. The first issue formulated for determination is therefore resolved in favour of the appellant. Consequently the entire proceeding having been vitiated due to failure to arraign the Appellant which is the very commencement of a criminal trial, is hereby set aside.

Having found and declared the entire trial in this case a nullity, I am of the view that it would not be legally wise to proceed to pronounce or delve into a consideration of the other issues in this appeal. To do that would be a mere academic exercise without any value to the justice of the case. But then, the question that now crops up is, having declared the entire proceeding a nullity, what is the appropriate order to make? I have pondered in my mind whether to order a retrial considering the nature of the allegation against the Appellant. In the determination of whether or not to order a retrial, the Supreme Court, which is the Apex and final court in this country, has set down certain factors to be considered before an order of a retrial is made. Thus Uwais, CJN in the case of Yahaya v. State (2002) 3 NWLR (pt.754) p.289 enumerated the relevant factors to be considered in ordering a retrial as follows.
“(a) That there has been an error in law or an irregularity in procedure of such a character that on the one hand, the trial was not rendered a nullity and on the other hand the court is unable to say there has been no miscarriage of justice;
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the Appellant;
(c) That there are no such special circumstances as would render it oppressive to put the Appellant on trial a second time;
(d) That the offence or offences of which the Appellant was convicted, or the consequences to the Appellant or any other person of the conviction or acquittal of the Appellant, are not merely trivial;
(e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it; and
(f) That to enable the prosecution adduce evidence against the Appellant which evidence may convict him when his success at the appeal is based on the absence of that same evidence.”
It was further held that those factors must co-exist for a retrial to be ordered. See also Yusuf v. State (supra) at p.878 paragraphs A – F; Yerima v. State (supra) at p.47 and Edibo v. State (2007) 13 NWLR (pt.1051) p.306 at 327 paragraphs C – G.

As I stated earlier, the trial in the instant case has not been vitiated on the ground of error in law and/or irregularity in procedure. Rather, it has been the finding of this Court that, there has been no trial at all, as the requirement of arraignment, which kick – starts a criminal trial was totally absent. In other words, the entire proceeding was void ab initio. In considering what consequential order to make in such a situation, His Lordship, Uwais, CJN drew a clear distinction between an order of “retrial” and an order for “a fresh trial”. It was accordingly stated that:
“A retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure. Where, however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not an order of retrial but of a fresh trial. In the instant case, there has been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial. This distinction is very important in deciding the consequential order to be made. Erekanure v. State (1993) 5 NWLR (pt.294) 385 followed.”
In the case of Erekanure v. State (supra) followed by Uwais, CJN in the Yahaya case (supra) Olatawura, JSC (of blessed memory) stated clearly at pp.395 – 396 as follows:-

“My decision that the trial of this case was a nullity is that there has never been a trial as the purported trial had no legal force or effect… In sum, and for the avoidance of doubt, I will repeat that the first trial was a nullity for non-compliance with Section 215 of the Criminal Procedure Law of Bendel State and also a clear breach of Section 33 (6) (a) of the 1979 Constitution of the Federal Republic of Nigeria. In view of the nature and gravity of the offence, I will order a fresh trial of the Appellant.”

In the instant case, it has been found that there has been a total neglect or failure to comply with the requirements of Section 215 of the Criminal Procedure Act and Section 36(6)(a) of the 1999 Constitution. The effect is that the trial was void ab initio. It is as if no trial had been conducted. In that respect, and following the authorities cited above, the proper order to be made is that of a fresh trial. In making that order, I have borne it in mind that, the offence the Appellant is accused of committing; being conspiracy to commit murder is a serious one. The actual crime of murder was committed, though the Appellant was not charged along with the person who actually pulled the trigger. The fact still remains that life was terminated as a result of the alleged conspiracy. It would therefore not be proper for the appellant to be let off the hook without a proper trial. Justice should not be for the Appellant alone, but for the victim, the society and indeed the relations or family of the victim. I am therefore of the view that an order for a fresh trial will satisfy the justice of the case.

On the whole therefore, I am of the view that this appeal should be allowed on the sole ground that the trial was a nullity ab initio. The appeal therefore succeeds and is hereby allowed. Consequently, the judgment of the trial court delivered on the 3rd day of February, 2012 in suit No. I/73C/2006 is hereby set aside. I order that the case be returned to the Chief Judge of Oyo State for a fresh trial by another Judge other than M. O. Olagunju, J.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree entirely with the lead judgment prepared by my learned brother, Haruna Simon Tsammani JCA.

Compliance with the provisions of Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and in this appeal, Section 215 of the Criminal Procedure Act are the basic but very fundamental requirements. The fact of compliance is equally basic as it should be visible upfront on the premier page of the proceedings of the court.

In this appeal my learned brother Tsammani has found that “there has been a total neglect or failure to comply...” with the mandatory and constitutional provisions of Section 36 (6) (a) of the 1999 Constitution. I hereby adopt the lead Judgment along with the consequential orders and allow the appeal.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my brother Haruna Simon Tsammani J.C.A. I completely agree with his reasoning and the conclusions reached and also abide by the order for a fresh trial.

Appearances

A.A. Olatunji, Esq., with O.E. Ige (Mrs), Rotimi Okeowo, Esq., and Adedayo Abass-Olisa, Esq. For Appellant

AND

L.A. Ganiyu, Esq., (Dir. Lit & Advisory Services, M.O.J. Oyo State) with Adegboyega Salami, Esq., (Prin. State Counsel) For Respondent