SAMUEL OMONIGHO v. THE STATE
(2019)LCN/13335(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2019
CA/B/404C/2016
RATIO
PLEA: TAKING OF THE PLEA OF AN ACCUSED IS MANDATORY
Let me start by making reference to relevant provisions of the law that make the taking of plea by an accused person mandatory before proceeding to trial. Section 215 of the Criminal Procedure Law provides:-
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 he had not been duly served therewith.?
Again Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:-
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.
It is therefore obvious that the aforementioned statutory and constitutional provisions impose an obligation and in fact make it mandatory for a trial Judge in a Criminal trial to ensure that the Charge is read to an accused person and his plea taken and recorded before proceeding to trial.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
PLEA: EFFECT OF NOT TAKING THE PLEA OF AN ACCUSED ON A TRIAL
Therefore, where the trial Court failed to take the plea of an accused before he is tried, the entire proceedings are vitiated and liable to be declared a nullity. What it means is that the accused person could not have been said to be properly arraigned and this is fatal to the Prosecutions case.
In ESTHER SOKEYE VS. THE STATE (2010) LPELR 4968 CA, this Court stated thus:
The Omission or failure to read and explain the Charge to the Appellant as well as the absence of her plea in the proceedings was unfortunate and mortally struck at the roof of the entire case. It is fatal and has rendered the entire proceedings a nullity.PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
SAMUEL OMONIGHO Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this Criminal Appeal was arraigned before the High Court of Delta State, Effurun Division presided over by P. O. Onajite ? kuejubola, J, on an information on a three Count Charge of Conspiracy to Commit Armed Robbery and Armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap RII. Vol. 14, Laws of the Federation of Nigeria, 2004.
In his judgment delivered on the 15th day of April, 2014, the learned trial Judge convicted the Appellant for conspiracy to commit Armed Robbery and Armed Robbery and sentenced him to 21 (Twenty One) years imprisonment in each of the three counts. The sentences are to run concurrently. This appeal is predicated on the said judgment.
SUMMARY OF FACTS:-
The case as presented by the prosecution at the trial Court was that on the 30th of July, 2009 at Effurun Judicial Division the Appellant in company of other people robbed one Egbunu Oghenenyore (m) while armed with Gun of Nissan Pathfinder Car Reg. No. AL 2065 KL, one Nokia Camera Phone, Jewellery and the sum of
1
N40,000.00.
In Count 3, the Appellant was charged with robbing one Solomon Oghenerume (m) of five Phones, a Toyota Camry Salon Car with registration number FL 900 AAA while armed with a gun.
The three Count Charge was brought under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. RII, Vol. 14, Laws of the Federation of Nigeria 2004. This Law carries a penalty of a death Sentence. Curiously, the counsel for the Respondent did not file an appeal against sentence of the Appellant for a lesser offence.
Apart from mentioning in his judgment at page 65 of the Records that the Appellant took his plea, there was nothing whatsoever in the Record of Appeal to show that the Appellant took his plea before the trial Court proceeded to take evidence from both parties convicted and sentence the Appellant.
Aggrieved with the judgment, the Appellant filed a Notice of Appeal containing four grounds of Appeal filed on the 17th of April, 2014. The Appellant filed an additional ground of Appeal and an Amended Notice of Appeal deemed properly filed on the 12th day of April, 2017.
Learned Counsel for the Appellant Ayo Asala Esq.,
2
distilled two issues for determination namely:-
1. Whether the trial and Conviction of the Appellant by the learned trial Judge is not liable to be declared a nullity by reason of the failure of the trial Court to take the plea of the Appellant before commencement of trial.
2. Whether having regard to the circumstances of this case and the totality of the evidence on record, the learned trial Judge was right in holding that the prosecution proved the charges of conspiracy and Armed Robbery against the Appellant beyond reasonable doubt.
Learned Counsel for the Respondent adopted the issues as distilled by counsel for the Appellant.
The first issue as distilled by Learned Counsel for the Appellant is key and fundamental. This is because it touches on the very foundation of the entire trial. A resolution of this first issue therefore will determine the need or otherwise of going into the other issue.
Interestingly, both counsel admit that apart from mentioning that the accused (Appellant herein) took his plea at the beginning of his judgment, there was nowhere in the Record of proceedings showing the date and how the Appellant
3
took his plea.
At the beginning of his judgment at page 65 of the Record of Appeal, the learned trial Judge held thus:-
The Charge was read and explained to the accused person, and he pleaded not guilty to the 3 count Charge, as in the information.?
Both Counsel in their briefs stated clearly that the legal effect of a proceeding in Criminal trial where an accused person did not take his plea is that the proceeding is a nullity and fatal to the case of the prosecution.
Let me start by making reference to relevant provisions of the law that make the taking of plea by an accused person mandatory before proceeding to trial. Section 215 of the Criminal Procedure Law provides:-
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
4
to the want of such service and the Court finds he had not been duly served therewith.?
Again Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:-
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.
It is therefore obvious that the aforementioned statutory and constitutional provisions impose an obligation and in fact make it mandatory for a trial Judge in a Criminal trial to ensure that the Charge is read to an accused person and his plea taken and recorded before proceeding to trial.
In LUKEMAN ADEYEMI VS. STATE (2013) LPELR SC Pg 486, OLU ARIWOOLA JSC held thus:
What then is it to give a plea It is trite that to give a plea is for an accused person to formally respond personally to a Criminal Charge, either of guilty, not guilty or no contest.
There is no doubt that the plea of an accused person must be taken by the trial Court before his trial commences. This is in obedience
5
to and in compliance with Section 215 of the Criminal Procedure Law.
Therefore, where the trial Court failed to take the plea of an accused before he is tried, the entire proceedings are vitiated and liable to be declared a nullity. What it means is that the accused person could not have been said to be properly arraigned and this is fatal to the Prosecutions case.
In ESTHER SOKEYE VS. THE STATE (2010) LPELR 4968 CA, this Court stated thus:
The Omission or failure to read and explain the Charge to the Appellant as well as the absence of her plea in the proceedings was unfortunate and mortally struck at the roof of the entire case. It is fatal and has rendered the entire proceedings a nullity.
The aforementioned authorities have left no one in doubt that there is an obligation on the trial Judge in a Criminal trial to ensure that the Charge is read to an accused person and his plea recorded before his trial commences. The learned trial Judge in this case failed to adhere to that obligation. This procedural irregularity has unfortunately resulted in fatal consequences and automatically rendered the
6
entire proceedings a nullity.
In the premise, issue number 1 is resolved against the Respondent and in favour of the Appellant.
A resolution of this issue has rendered a consideration of the other issue unnecessary.
There is merit in this appeal and it is hereby allowed. The trial, conviction and sentence passed on the Appellant in Charge No. EHC/49C/2010 delivered on the 15th day of April, 2014 by P. O. Onajite-Kuejubola, J., sitting at the Effurun Division of the Delta State High Court is null and void and accordingly set aside.
The case file is remitted back to the Chief Judge of Delta State for a fresh trial before another Judge of the Delta State High Court.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA (Ph.D).
I am in total agreement with the reasoning and conclusion arrived thereat. I also allow the appeal.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I am in full agreement with the erudite reasoning and conclusion of my learned brother CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA in the judgment just
7
delivered. I had the opportunity of reading its draft before now.
?I also allow this appeal and abide by the consequential orders.
8
Appearances:
O. O. ErhurituFor Appellant(s)
O. F. Enenmo (Director of Appeals) with him, E. E. ErebeFor Respondent(s)
Appearances
O. O. ErhurituFor Appellant
AND
O. F. Enenmo (Director of Appeals) with him, E. E. ErebeFor Respondent
