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ADIGUN v. STATE (2022)

ADIGUN v. STATE

(2022)LCN/16060(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/IB/297C/2018

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

SEYI ADIGUN APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON WHERE A PROCEDURE FOR DOING A THING HAS BEEN LAID DOWN

The law is quite settled that where a procedure for doing a thing has been laid down by or in a statute, “there should be no other method of doing it” – Dr. Arthur Agwuncha Nwankwo & 2 Ors. v. Alhaji Umaru Yar’Adua & 40 Ors. (2010) 12 NWLR (Pt. 1209) 518 at 559. See also Co-operative and Commerce Bank (Nig.) Plc. v. Attorney-General, Anambra State (1992) 8 NWLR (Pt. 261) 528. PER ADUMEIN, J.C.A.

THE POSITION OF LAW ON THE ARRAIGNMENT OF AN ACCUSED PERSON

On arraignment of a defendant, accused of committing a crime, Section 215 of the Criminal Procedure Act Cap C41, Laws of the Federation of Nigeria, 2004 the same as Section 218 of the Criminal Procedure Law of Ogun State, 2006 provides as follows:
“215. Pleading to information or charge
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.”
The provisions of Section 215 of the Criminal Procedure Act have been considered and pronouncements made in many cases, including Oyediran v. The Republic (1967) NMLR 122, Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721, Adeniyi v. The State (2007) 13 NWLR (Pt.730) 375 and Amina Musa v. The State (2017) 4 NWLR (Pt. 1555) 187. In the case of Akpiri Ewe v. State (1992) 6 NWLR (Pt. 246) 147 at 152 – 153, the Supreme Court, per Kutigi, JSC (as he then was) held as follows:
“1. The person to be tried shall be placed before the Court unfettered;
2. The charge or information shall be read and explained to him to the satisfaction of the Court by the registrar or other officer of the Court; and
3. Such person shall be called upon to plead instantly thereto.”
And at page 155 of the same case, Ogwuegbu, JSC proceeded to state as follows:
“In addition to the three pre-conditions for a valid arraignment set out in the lead judgment. Where the charge contains more than one count, each count should be read and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court and he should be asked to plead to each count as it is read to him unless there are valid reasons to do otherwise.”
In a charge or an information containing two counts or more the following three steps shall be taken for the arraignment of the defendant or defendants to be valid:
(a) The defendant should be placed before the Court without fetters;
(b) Each of the counts in the charge or information shall be read and explained to him, to the satisfaction of the Court, by the registrar or other officer of the Court; and
(c) The defendant shall be called upon to plead instantly to each of the counts of the charge or information, as read and explained to him. The law is clear that the trial of an accused defendant commences on his arraignment and taking of his plea. See Edet Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 and Amina Musa v. The State (supra). Therefore, where there is no valid arraignment and taking of the defendant’s plea, the whole trial amounts to a nullity. See Sele Eyorokoromo & Anor v. The State (1979) 6 – 9 SC 3 and Akpiri Ewe v. State (supra) at 153.
PER ADUMEIN, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CHARGED WITH A CAPITAL OFFENCE MUST BE REPRESENTED BY A LEGAL PRACTITIONER

As stated earlier, the appellant and his co-defendant were accused of a capital offence and by Section 352 of the Criminal Procedure Act, the appellant was ab initio entitled to be represented by a “Legal Practitioner.” For the avoidance of any doubt, Section 352 of the Criminal Procedure Act provides as follows:
“Where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer or legal practitioner, and if the accused is not defended by a legal practitioner the Court shall, if practicable, assign a legal practitioner for his defence.” (Underlying mine for the sake of emphasis)
In the case of Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 at 135 – 136, the Supreme Court, per Boonyamin Oladiran Kazeem, JSC after referring to Section 352 of the Criminal Procedure Law of Bendel State, 1976, in pari materia with those of Section 352 of the Criminal Procedure Act, 2004 and other provisions of the said law; and the cases of Oladimeji v. R. 13 WACA 275, Atunde v. Commissioner of Police 14 WACA 171, Arua Eme v. The State (1964) 1 ALL NLR 416 (Same as Anyah v. The State (1965) NMLR 62), Kajola v. Police Commissioner (1973) 1 ALL NLR (Pt. 2) 31 and Lateef Saka v. The State (1981) 11 – 12 SC 65 held that by these procedural irregularities – failure to comply with the provisions of Section 352 and other relevant of the Criminal Procedure Act by a trial Court, “the conclusion” is “that the appellant in that case did not receive a fair trial.”
PER ADUMEIN, J.C.A.

WHETHER OR NOT THE APPELLATE COURT MUST RESOLVE ALL ISSUES RAISED BY PARTIES BEFORE IT

The law is that an intermediate appellate Court, such as this Court, has a duty to resolve all the issues raised by the parties. See Bello v. Diocesan Synod of Lagos (1973) 1 All NLR 247; (1973) 3 SC 102 and Ifeanyi Chukwu (Osondu) Ltd v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322.
The rule that an intermediate appellate Court must resolve all the issues raised before it is not with some exceptions. Thus, where such appellate rules that it clearly lacks jurisdiction to entertain an appeal, it becomes unnecessary to consider the other issues before it. See F.C.D.A v. Sule (1994) 3 NWLR (Pt. 332) 257, Oro v. Falade (1995) 5 NWLR (Pt. 396) 385, Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd (2000) 5 NWLR (supra) at 352, Dr. Okey Ikechukwu v. Federal Republic of Nigeria (2015) 7 NWLR (Pt. 1457) 1 at 21 per Nweze, JSC and Mr. Matthew Owuru & Anor v. Hon. Agi Micheal Adigwu & Anor (2018) 1 NWLR (Pt. 1599) 1 at 19 per Onnoghen, CJN.
PER ADUMEIN, J.C.A.

PRINCIPLES GOVERNING A DECISION OF WHETHER OR NOT TO MAKE AN ORDER FOR RETRIAL
I am aware that having declared that the trial is a nullity, it is not automatic that a new trial, retrial or trial de novo must be ordered by the Court. The law is that each case must be considered on its peculiar circumstances and facts. See Onu Okafor v. The State (1976) 5 SC 13, Nwafor Okegbu v. The State (1979) 11 SC 1 and Samaila Umaru v. The State (2009) 8 NWLR (Pt. 1142) 134.
On the principles governing a decision on whether or not to make an order for retrial, the Supreme Court, per Dahiru Musdapher, JSC (as he then was, later CJN) in Samaila Umaru v. The State (supra) at 143 – 144 elaborated as follows:
“Now, what are the principles governing order of retrial in criminal proceedings? In the case of Yesufu Abodundu and Ors v. The Queen (1959) SCNLR 162 at 166 – 167; (1959) 1 NSCC 56 at 60 or (1959) 4 FSC 70 at 73 – 74. Abbott, FJ observed:
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied:

(a) that there has been an error in law (including the observance of the law of evidence) 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 this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11 (1) of the Ordinance
(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; and
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
See also the cases of Owoh v. Queen (1962) 2 SCNL 409 and Joseph Okosun v. The State (1979) 3 – 4 SC 36 which were further cited by His Lordship. PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and one Wale Adebowale were arraigned in the High Court of Ogun State, holden at Ijebu-Ode, in Charge No. HCJ/24C/2012 charged with the following offences:
“COUNT I:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY contrary to Section 6(b) and Punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, (Cap. R. 11) Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
SEYI ADIGUN (M) AND WALE ADEBOWALE (M) on or about the 8th day of February, 2009 at Odogbolu junction, along Sagamu/Benin expressway in the Ijebu-ode Judicial Division conspired to commit armed robbery.
COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY Contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap. R. 11), Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
SEYI ADIGUN (M) and WALE ADEBOWALE (M) on or about the 8th day of February, 2009 at Odogbolu junction, along Sagamu/Benin expressway in the Ijebu-ode judicial Division while armed with firearms to wit: gun robbed Edith Adesanya of her handbag.”

At the conclusion of their trial, the appellant and his co-defendant were found guilty, convicted and sentenced to death by hanging. This appeal is against the said decision and it was heard on the following:
1. Amended notice of appeal filed on 23/08/2019 and deemed as filed on 14/07/2021;
2. Appellant’s brief filed on 23/08/2019 but deemed as filed on 08/11/2021;
3. Respondent’s brief filed on 21/02/2020; and deemed as filed on 08/11/2021; and
4. Appellant’s reply brief filed on 13/03/2020 but also deemed as filed on 08/11/2021.

Babafemi Akinsete, Esq., learned counsel who settled the appellant’s brief, distilled the following three issues for determination:
“1. Whether the learned trial judge was right in convicting and sentencing the appellant to death by hanging without first satisfying the condition precedent to the plea taking of the appellant. (Ground 2)
2. Whether the appellant’s purported confessional statements were voluntarily made and also admissible in law. (Grounds 3, 4, 5 and 6)
3. Whether the learned trial judge was right when he held that the respondent proved counts 1 and 2 of Charge No: HCJ/24C/2012 beyond reasonable doubt in reaching his conclusion that the appellant was guilty and thereby sentenced him to death by hanging. (Grounds 1, 7, 8 and 9).”

On behalf of the respondent, O. A. Sonoiki, Esq. (Chief State Counsel, Ogun State Ministry of Justice) formulated two issues for determination as follows:
“1) Whether the prosecution has proved the offences of Conspiracy to Commit Armed Robbery and Armed Robbery against the appellant beyond reasonable doubt.
2) Whether the plea of the appellant was rightly taken in accordance with the law.”

The issues identified by the learned counsel for the appellant adequately and precisely cover the eight grounds of appeal set out in the appellant’s amended notice of appeal. I adopt the three issues as raised by the learned counsel for the appellant. Issue No.1 will be taken first and thereafter, if there is any need, issues 2 and 3 will be considered together

ISSUE No.1
Whether the learned trial judge was right in convicting and sentencing the appellant to death by hanging without first satisfying the condition precedent to the plea taking of the appellant.

Learned counsel for the appellant referred to page 43 of the record of appeal and contended that “it is abundantly clear from the face of the record of the lower Court that the charge upon which the appellant was arraigned on 17th October, 2013 was not read over to the appellant and not explained to him before his plea was taken by the Court and thereafter convicted and sentenced to death by hanging on 10th April, 2018.”

Counsel argued that the proceedings of the trial Court on 17th October, 2013 did not satisfy the conditions set out in Section 215 of the Criminal Procedure Act and confirmed by many decided cases, such as Afolalu v. The State (2009) 3 NWLR (Pt. 1127) and Lufadeju v. Johnson (2007) All FWLR (Pt. 371) 1532.

Relying on the cases of Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 517, Co-operative & Commercial Bank (Nig.) Plc. v. A – G; Anambra State (1992) 8 NWLR (Pt. 261) 528 and Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334, learned counsel for the appellant submitted that:
“It is settled law that where a law or statute has laid down a procedure for doing a thing, compliance with that procedure is a condition precedent to the validity of the action taken. Put differently, where a statute or legislation provides for a particular method of performing a duty regulated by statute, that method and no other must be adopted.”

Learned counsel finally urged the Court to resolve this issue in favour of the appellant.

In urging the Court not to be persuaded by the appellant’s arguments, learned counsel for the respondent referred the Court to the cases of Omokuwajo v. FRN (2010) 6 SCM 193 at 195, Tobby v. State (2001) 10 NWLR (Pt. 720) 23 and Adeniyi v. State (2001) 7 SCM 1 on the requirements of a valid arraignment. Relying on the case of Ogunye v. State (1999) 5 NWLR (Pt. 604) at 548, learned counsel for the respondent submitted that:
“…It has been variously held that the requirements for arraignment must be satisfied and nothing should be left to speculation, there is nothing in law that says that the trial judge must depict it in his record that he is satisfied that the charge has been read over and explained to the accused and that he pleaded before the case proceeded to trial. It can be presumed that everything was regularly done and that the judge was satisfied. The test with regard to this is subjective not objective.”

Counsel contended that “in this instance (sic) case, the plea of the appellant and his co-accused was read over to them and a plea of not guilty was recorded for them.”

The law is quite settled that where a procedure for doing a thing has been laid down by or in a statute, “there should be no other method of doing it” – Dr. Arthur Agwuncha Nwankwo & 2 Ors. v. Alhaji Umaru Yar’Adua & 40 Ors. (2010) 12 NWLR (Pt. 1209) 518 at 559. See also Co-operative and Commerce Bank (Nig.) Plc. v. Attorney-General, Anambra State (1992) 8 NWLR (Pt. 261) 528.

On arraignment of a defendant, accused of committing a crime, Section 215 of the Criminal Procedure Act Cap C41, Laws of the Federation of Nigeria, 2004 the same as Section 218 of the Criminal Procedure Law of Ogun State, 2006 provides as follows:
“215. Pleading to information or charge
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.”
The provisions of Section 215 of the Criminal Procedure Act have been considered and pronouncements made in many cases, including Oyediran v. The Republic (1967) NMLR 122, Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721, Adeniyi v. The State (2007) 13 NWLR (Pt.730) 375 and Amina Musa v. The State (2017) 4 NWLR (Pt. 1555) 187. In the case of Akpiri Ewe v. State (1992) 6 NWLR (Pt. 246) 147 at 152 – 153, the Supreme Court, per Kutigi, JSC (as he then was) held as follows:
“1. The person to be tried shall be placed before the Court unfettered;
2. The charge or information shall be read and explained to him to the satisfaction of the Court by the registrar or other officer of the Court; and
3. Such person shall be called upon to plead instantly thereto.”
And at page 155 of the same case, Ogwuegbu, JSC proceeded to state as follows:
“In addition to the three pre-conditions for a valid arraignment set out in the lead judgment. Where the charge contains more than one count, each count should be read and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court and he should be asked to plead to each count as it is read to him unless there are valid reasons to do otherwise.”
In a charge or an information containing two counts or more the following three steps shall be taken for the arraignment of the defendant or defendants to be valid:
(a) The defendant should be placed before the Court without fetters;
(b) Each of the counts in the charge or information shall be read and explained to him, to the satisfaction of the Court, by the registrar or other officer of the Court; and
(c) The defendant shall be called upon to plead instantly to each of the counts of the charge or information, as read and explained to him. The law is clear that the trial of an accused defendant commences on his arraignment and taking of his plea. See Edet Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 and Amina Musa v. The State (supra). Therefore, where there is no valid arraignment and taking of the defendant’s plea, the whole trial amounts to a nullity. See Sele Eyorokoromo & Anor v. The State (1979) 6 – 9 SC 3 and Akpiri Ewe v. State (supra) at 153.

The question to be answered now is: Was there compliance or even substantial compliance with the provisions of Section 215 of the Criminal Procedure Act in this case? The answer can only be gotten from the record of the proceedings of the trial Court and of utmost importance or relevance are the proceedings of the trial Court described as “Court Notes”, of Thursday, the 17th day of October, 2013 on page 43, which are hereby fully reproduced:
“2 Accused present, Representation – Mr. S. A. Solana.
Court – Registrar – Read the charge to the accused persons.
1st Accused person – Pleads not Guilty to Counts 1 & 2
2nd Accused person – Pleads not Guilty to Counts 1 & 2
Counsel – Mr. Solana – We are suggesting 13th of November for trial.
Court – The case is adjourned to the 13th of November 2013 for hearing.
(Sgd.)
S. E. AKINBIYI
JUDGE 17/10/2013.”

From the record of appeal, reproduced above, it is not even clear who Mr. S.A. Solana represented during the proceedings of the trial Court on 17/10/2013, it is also not clear if the appellant and his co-defendant were represented by any legal practitioner. However, I have taken judicial notice of the relevant information in the record of appeal on page 44 thereof, which shows that Mr. S. A. Solana, a State Counsel appeared for the State and, by Wednesday, the 11th day of December, 2013, one Mrs. Oluwakemi Oke of “Legal Aid” who appeared for appellant and his co-defendant stated in Court, inter alia, as follows:
“I was informed that the family members are already arranging for lawyers for them.”

With the information contained on page 44 of the record of appeal, it is clear that the appellant and his co-defendant were not represented by any legal practitioner on 17/10/2013 when they were allegedly arraigned and their pleas were purportedly taken.

As stated earlier, the appellant and his co-defendant were accused of a capital offence and by Section 352 of the Criminal Procedure Act, the appellant was ab initio entitled to be represented by a “Legal Practitioner.” For the avoidance of any doubt, Section 352 of the Criminal Procedure Act provides as follows:
“Where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer or legal practitioner, and if the accused is not defended by a legal practitioner the Court shall, if practicable, assign a legal practitioner for his defence.” (Underlying mine for the sake of emphasis)
In the case of Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 at 135 – 136, the Supreme Court, per Boonyamin Oladiran Kazeem, JSC after referring to Section 352 of the Criminal Procedure Law of Bendel State, 1976, in pari materia with those of Section 352 of the Criminal Procedure Act, 2004 and other provisions of the said law; and the cases of Oladimeji v. R. 13 WACA 275, Atunde v. Commissioner of Police 14 WACA 171, Arua Eme v. The State (1964) 1 ALL NLR 416 (Same as Anyah v. The State (1965) NMLR 62), Kajola v. Police Commissioner (1973) 1 ALL NLR (Pt. 2) 31 and Lateef Saka v. The State (1981) 11 – 12 SC 65 held that by these procedural irregularities – failure to comply with the provisions of Section 352 and other relevant of the Criminal Procedure Act by a trial Court, “the conclusion” is “that the appellant in that case did not receive a fair trial.”

In this case, the trial Court clearly failed to comply with the provisions of Section 215 of the Criminal Procedure Act and also did not afford the appellant the opportunity to be represented by a legal practitioner, at the critical stage of the commencement of his trial, and the only reasonable conclusion which this Court can arrive at is that he and his co-defendant did not receive a fair trial.

Before I forget, the law allows an appellate Court to take judicial notice of any or all relevant information in the record of appeal, which may or will assist the Court in doing substantial justice in the determination of the appeal. See the cases of  SBM Services (Nig.) Ltd & 4 Ors v. Catherine Sede Okon & 18 Ors (2004) 9 NWLR (Pt. 879) 529, Alhaji Mohammed Sanusi Daggash v. Hajia Fati Ibrahim Bulama & 6 Ors (2004) 14 NWLR (Pt. 892) 144 and Military Governor of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291.

Back to the issue before the Court, the ‘arraignment’ of the appellant and his co-defendant, to say the least, was bereft of the necessary pre-requisites for a legally valid arraignment. For example, there is nothing to show that the information was read over and explained to each of the defendants by the registrar of the Court and that each of them was called upon to plead to each of the two counts therein.

The purported arraignment of the appellant and his co-defendant was unnecessarily rushed, and the required steps were in the process not evidently taken. It was said somewhere and I recall restating it in several cases that, in cases like this: “Justice rushed is justice crushed.” If the trial Court had taken its time to ensure that the appellant and his co-defendant were properly arraigned, by carefully, duly and thoroughly recording the proceedings thereof, this ‘ugly’ situation would have been avoided and the administration of criminal justice, accordingly, enhanced. The evident laxity and rush by the trial Court have unfortunately taken backwards the administration of justice by about ten (10) years in this case.

The rather worrisome aspect of this case is the obvious omission to adhere to the admonition of the Supreme Court in Akpiri Ewe v. State (supra) at 153, where the apex Court emphasized that:
“There is thus 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.” (Underlying mine for the sake of emphasis)

Since the appellant and his co-defendant were not validly arraigned before the trial Court, their trial was not validly commenced and the whole trial was nothing more than a mere nullity. It is as if they have not been tried at all.

Without more, I resolve this issue in favour of the appellant and against the respondent.

ISSUES 2 AND 3
The law is that an intermediate appellate Court, such as this Court, has a duty to resolve all the issues raised by the parties. See Bello v. Diocesan Synod of Lagos (1973) 1 All NLR 247; (1973) 3 SC 102 and Ifeanyi Chukwu (Osondu) Ltd v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322.
The rule that an intermediate appellate Court must resolve all the issues raised before it is not with some exceptions. Thus, where such appellate rules that it clearly lacks jurisdiction to entertain an appeal, it becomes unnecessary to consider the other issues before it. See F.C.D.A v. Sule (1994) 3 NWLR (Pt. 332) 257, Oro v. Falade (1995) 5 NWLR (Pt. 396) 385, Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd (2000) 5 NWLR (supra) at 352, Dr. Okey Ikechukwu v. Federal Republic of Nigeria (2015) 7 NWLR (Pt. 1457) 1 at 21 per Nweze, JSC and Mr. Matthew Owuru & Anor v. Hon. Agi Micheal Adigwu & Anor (2018) 1 NWLR (Pt. 1599) 1 at 19 per Onnoghen, CJN.
In this case, having held that the trial by the lower Court of the appellant and his co-defendant was a nullity, it will be illogical to proceed to determine the remaining two issues; for the resolution of these two issues may prejudice the effect of the order which should naturally flow from the decision on issue no. 1. Put bluntly, the consideration of issues 2 and 3 in this appeal may render nugatory an order of retrial or trial de novo, which may be a necessary consequence of the declaration that the earlier trial was a nullity.
That it has become unnecessary for this Court to pronounce on the remaining issues, see the case of Eagle Super Pack (Nig.) Ltd v. African Continental Bank Plc. (2006) 19 NWLR (Pt. 1013) 20 . In the case of Chitra Knitting & Weaving Manufacturing Company Limited v. G. O. Akingbade (2016) 14 NWLR (Pt. 1533) 487 at 514, where the Supreme Court, per Kekere-Ekun, JSC made it very clear by stating as follows:
“In the instant case, the lower Court having found that the parties’ right to fair hearing was breached and having declared the proceedings a nullity and ordered a retrial was quite right not to make any pronouncement on any of the other issues raised in the appeal. To do so would prejudice the retrial of the case.”

There is no legal need, therefore, for the Court to consider or resolve issues 2 and 3 raised for determination by the appellant.

CONCLUSION
The appeal therefore succeeds and it is allowed to the extent that the trial was a nullity. And the judgment of the trial Court delivered on the 10th day of April, 2018 is hereby set aside.

I am aware that having declared that the trial is a nullity, it is not automatic that a new trial, retrial or trial de novo must be ordered by the Court. The law is that each case must be considered on its peculiar circumstances and facts. See Onu Okafor v. The State (1976) 5 SC 13, Nwafor Okegbu v. The State (1979) 11 SC 1 and Samaila Umaru v. The State (2009) 8 NWLR (Pt. 1142) 134.
On the principles governing a decision on whether or not to make an order for retrial, the Supreme Court, per Dahiru Musdapher, JSC (as he then was, later CJN) in Samaila Umaru v. The State (supra) at 143 – 144 elaborated as follows:
“Now, what are the principles governing order of retrial in criminal proceedings? In the case of Yesufu Abodundu and Ors v. The Queen (1959) SCNLR 162 at 166 – 167; (1959) 1 NSCC 56 at 60 or (1959) 4 FSC 70 at 73 – 74. Abbott, FJ observed:
“We are of the opinion that before deciding to order a retrial, this Court must be satisfied:

(a) that there has been an error in law (including the observance of the law of evidence) 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 this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11 (1) of the Ordinance
(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; and
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
See also the cases of Owoh v. Queen (1962) 2 SCNL 409 and Joseph Okosun v. The State (1979) 3 – 4 SC 36 which were further cited by His Lordship.

In this case, having regard to the nature and gravity of the offences with which the appellant is charged and all the surrounding circumstances, an order for a fresh trial or trial de novo will occasion a greater carriage of justice than to refuse it.

Therefore, the conclusion is that an order is hereby made directing that the appellant and his co-defendant to be expeditiously retried by the High Court of Ogun State, presided over by any other Judge of that Court than S. E. Akinbiyi, J., to whom the Honourable Chief Judge of Ogun State may assign the case.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment delivered by my learned brother – MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I agree with him that this appeal is meritorious. My lord in a succinct and concise manner resolved the issues donated for resolution in the appeal and there is no redeeming feature in this appeal to hold otherwise. The Appellant was convicted and sentence to death by hanging for the offence of conspiracy to commit armed robbery and armed robbery contrary to Section (1)(a) of the Robbery and Firearms (Special Provision) Act, (Cap R. 11), Laws of the Federation of Nigeria, 2004.
The grouse of the Appellant is that the arraignment was done in breach of Section 215 of the Criminal Procedure Act Cap C41, Laws Federation of Nigeria, 2004. The Supreme Court in interpreting the above provision of the law held in KAJUBO V. STATE (1988) 1 NWLR (PT. 13) 721 AT 724 that for a valid and proper arraignment of an accused person, the following conditions must be satisfied: (a) The accused shall be placed before the Court unfettered unless the Court shall see cause to otherwise order; (b) 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 (c) He shall then be called upon to plead instantly thereto and the failure to comply fully or wholly with these requirements renders the trial a nullity. See also the case of EYOROKOROMO V. THE STATE (1979) 6-9 SC 3 and SAMUEL EREKANURE V. THE STATE (1993) 5 NWLR (PT. 294) 385.
From the record of the Court, it is clear that the trial Court failed to comply with the provisions of Section 215 of the Criminal Procedure Act because there is nothing to show that the information was read over and explained to each of the Defendants by the Register of the Court and each of them was called upon to plea to each of the two counts therein, therefore in the case of AKEEM V. STATE (2017) LPELR-42465(SC), the apex Court held thusly:
“… Where there is no proper arraignment, there is no trial in law, no matter the strength or cogency of the evidence adduced. Any subsequent judgment arising from such proceedings would be rendered totally and incurably defective and consequently declared null and void. See Kajubo v State (1988) 1 NWLR (Pt. 73) 721, Eyorokoromo v State (1979) 6-9 SC 3, Erekanure v State (1993) 5 NWLR (Pt. 294) 385 and Effiom v The State (1995) 1 NWLR (Pt. 373) 507.” Per GALINJE, J.S.C.

In view of the above, I am in full agreement with the lead judgment of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I too hold that the appeal is meritorious and the case should be remitted back to the Chief Judge of Ogun State for reassignment to another Judge for trial de novo.

FOLASADE AYODEJI OJO, J.C.A.: I have the opportunity to read in draft the lead judgment delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. His Lordship has admirably resolved the germane issue in this appeal which is whether the arraignment of the Appellant before the trial Court was valid.

Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides as follows:
“(6) Every person who is charged with a criminal offence shall be entitled to-
(a) be informed in the language that he understands and in detail of the nature of the offence.”
The foregoing constitutional provision which must be strictly complied with guarantees a fair trial and safeguards the interests of the accused person/Defendant. Arraignment is a very important initial step in the trial of a person on a criminal charge. The fundamental issue in the matter of arraignment of an accused is that the charge or information shall be read over and explained to him in the language he understands before his plea is taken. Thereafter he is required to plead to the charge preferred against him. It is at this point that issues are joined in a criminal trial. Fair trial, which is a constitutional right, demands that an accused person who is called to answer to his actions should understand why he is facing trial. Where there is no proper arraignment, any subsequent trial is a nullity, no matter the strength or cogency of the evidence adduced by the Prosecution. See FEDERAL REPUBLIC OF NIGERIA VS. ABUBAKAR (2019) 7 NWLR (PT 1670) 113, AKINLOLU VS. STATE (2019) 5 NWLR (PT. 1665)343, IMAM VS. FEDERAL REPUBLIC OF NIGERIA (2019) 8 NWLR (PT. 1674) 197 AND EREKANURE VS STATE (1993) 5 NWLR (PT. 294) 385.

In the instant appeal, the Appellant was tried, convicted and sentenced by the trial Court. There is however nothing in the record to show that the charge contained in the Information was read over and explained to him. He was not made to understand why he is facing trial. The proceedings of the trial Court was therefore a nullity for non-compliance with the mandatory constitutional and statutory provisions. The Appellant cannot therefore be said to have enjoyed a fair trial.

On the whole, I agree with the reasoning and conclusion reached by my learned brother in the lead Judgment. I too allow the appeal on the same terms as stated in the lead judgment and abide by the consequential orders contained therein.

Appearances:

B. J. AKINSETE, ESQ. For Appellant(s)

B. A. ADEBAYO, ESQ. (Director, Public Prosecution, Ogun State Ministry of Justice), with him, A. D. ADEFALA, ESQ. (Principal State Counsel, Ogun State Ministry of Justice) and M. M. AKINTUNDE, ESQ. (Senior State Counsel, Ogun State Ministry of Justice) For Respondent(s)