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AKIODE v. FRN (2022)

AKIODE v. FRN

(2022)LCN/16160(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, June 28, 2022

CA/IB/310C/2020

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

SAEED AKIODE APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE PROCEDURE TO BE FOLLOWED IN THE ARRAINGMENT OF AN ACCUSED PERSON

A criminal trial starts with the arraignment of an accused person before the trial Court. Arraignment is therefore the foundation of a criminal trial. The arraignment essentially consists of reading the charge or information to the accused person, or stating to him the substance of the charge or information and calling on him to plead thereto. 

The procedure to be followed in an arraignment is stipulated in Section 215 of the Criminal Procedure Act which provides as follows:
“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 objects to the want of such service and the Court finds that he has not been duly served therewith.”
In addition to Section 215 of the Criminal Procedure Act quoted above, the Constitution of the Federal Republic of Nigeria has, in safeguarding the right to fair hearing of persons accused of criminal offences, stipulated in its Section 36 (6)(a) and (e) as follows:
(a) Every person who is charged with a criminal offence is entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence. ​
PER MOHAMMED, J.C.A.

THE ESSENTIAL CONDITIONS FOR A VALID ARRAIGNMENT OF AN ACCUSED PERSON

Discernible from the combined provisions of Section 215 of the Criminal Procedure Act, 2004 and Section 36(6)(a), (e) of the 1999 Constitution quoted above, are the following three conditions which are essential for a valid arraignment:
(i) That the accused person shall be placed before the trial Court unfettered unless the Court otherwise orders;
(ii) That the charge or information shall be read over and explained to the accused person in the language he understands by the Registrar or other officer to the satisfaction of the Court; and
(iii) That the accused person shall be called upon to plead instantly to the said charge or information.
The above three conditions for valid arraignment, which are conjunctive, have been restated in several decisions of the appellate Courts: OLANREWAJU v STATE (2020) LPELR-49569(SC), per Galinje, JSC at pages 4-5, paras. E – F, ADAMU & ANOR v FRN (2019) LPELR-48775(SC), per Kekere-Ekun, JSC at pages 25 – 26, paras. A – A, FRN v ABUBAKAR (2019) LPELR-46533(SC), per Onnoghen, JSC (as he then was) at pages 19 – 21, paras. D – E, IDEMUDIA v STATE (1999) LPELR- 1418(SC), per Ejiwunmi, JSC at pages 45 – 46, paras. B – D, AMAKO v STATE (1995) LPELR-451(SC), per iguh, JSC at page 24 paras. A – F, ADIGUN v STATE (2022) LPELR-57115(CA), per Adumein, JCA at pages 6 – 9, paras. E – B and Joseph v. State (2013) LPELR-22604(CA), per Abiru, JCA at pages 26 – 28, paras. G -D.
These statutory and constitutional provisions are aimed at not only safeguarding the fair hearing rights of persons accused of criminal offences, but also at ensuring a fair trial in criminal adjudications. In particular, the stipulation in Section 36(6)(a) reinforces Section 215 of the Criminal Procedure Act by mandating that the charge or information must be read and explained to the accused person in the language he understands and in detail. The Sections protect those accused persons who are unlettered in the language of the Court, which is English language.
In explaining the mandatory nature of Section 215 of the Criminal Procedure Act, the Supreme Court, per Oputa, JSC held in KAJUBO v STATE (1988) LPELR- 1646(SC), at page 19, paras. B – C, 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 merely semantics. No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea. Section 215 CPA sets out the mandatory rules required by law for a proper arraignment.”
Further in IDEMUDIA v STATE(1999) LPELR-1418(SC), the Apex Court reiterated the mandatory essence of Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution, which is in pari materia with Section 36(6)(a) of the extant 1999 Constitution, when His Lordship Katsina-Alu, JSC (as he then was) held that:
“The mandatory nature of Section 215 of the Criminal Procedure Law is buttressed by Section 33(6)(a) of the Constitution. Having said that, the question must be asked: What category of accused persons do Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution aim to protect? The language of the Court is English. A vast majority of the people in this country are not literate in English language. I believe and indeed I am convinced that the person the lawmaker had in mind to protect by these provisions was the illiterate Nigerian. If it were not so the phrase in the language he understands” would become meaningless. This phrase surely presupposes that the accused person does not understand the language of the Court which is English. PER MOHAMMED, J.C.A.

WHETHER OR NOT THE TRIAL COURT MUST RECORD AN ACCUSED PERSONS PLEA WHERE THEY PLEAD GUILTY TO A CHARGE

Thirdly, Section 218 of the Criminal Procedure Act requires that, where, as in this case, the accused person pleads guilty to the charge, the trial Court shall record his plea as nearly as possible in the words used by him, and if satisfied that the accused person intended to admit the truth of all the essential elements of the offence charged and of which he has pleaded guilty, the Court shall convict him of that offence. In SHODIPO v FRN (2017) LPELR-42774(CA), this Court, per Tsammani, JCA held at pages 36 – 41, that the purpose of recording the plea of guilty of an accused person “as nearly as possible in the words used by him” is to ensure that the accused’s plea of guilt is unequivocal and unambiguous.
In YUSUF v STATE (2011) 18 NWLR (Pt. 1279) 853, the Apex Court, per Rhodes- Vivour, JSC held at page 881, paras. G – H, 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 and that for that reason there is the primary duty on the trial judge to ensure that mere was compliance. This duty on the trial Court was emphasized in EWE v STATE (supra), at page 6-7, paras. D – D, KAJUBO v STATE (supra), per Wali, JSC and OLABODE v STATE (2009) 11 NWLR (Pt. 1152) 254, per I. T. Muhammad, JSC (as he then was) at page 276, para. C.
As shown above, the trial Court in this instance merely recorded the Appellant’s guilty plea in a reported speech, instead of recording the words used by him. The trial Court merely stated that: “Accused person understands the charge and pleads guilty”.
In considering the validity of an arraignment made by a trial Court under an exactly similar situation, this division of the Court, per Uwa, JCA, had held in the case of KOLEOSHO v FRN (2014) LPELR-22929(CA) 1 at pages 20 – 21, paras. A – B, as follows:
“No doubt the trial Court did not comply with the provisions of Sections 215 and 218 of the Criminal Procedure Act and the Constitution. An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the Court before the plea is taken. See OYEDIRAN v THE REPUBLIC (1967) NMLR 122. All that the trial Court recorded is: “Charge read and interpreted in Yoruba language. Accused person understands and pleads guilty.”
PER MOHAMMED, J.C.A.

THE POSITION OF THE LAW WHERE A TRIAL IS DECLARED A NULLITY

Ordinarily, where a trial is declared a nullity as done in this case, the order to make is one of retrial. However, in YAHAYA v STATE (2002) LPELR-3508(SC), the Supreme Court, per Uwais, CJN stated the circumstances under which an appellate Court may order a retrial when he held at pages 12 – 13, paras. E – D, that:
“The principles are that in ordering a retrial, the facts of the case must contain the following factors:- (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, the Court is unable to say that 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 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. (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. I am aware that all these factors must exist conjunctively for a retrial to be ordered.”PER MOHAMMED, J.C.A.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The undisputed fact by the parties to this appeal is that on the 27th of May, 2010, the Appellant was arraigned before the Federal High Court sitting in Abeokuta, Ogun State (the trial Court) on a one count charge of being in possession of Cannabis Sativa without lawful authority, contrary to Section 11(c) of the National Drug Law Enforcement Agency Act, Cap. N30, LFN, 2004. The Appellant pleaded guilty to the charge and the Respondent reviewed the evidence and tendered five (5) exhibits marked Exhibits 1-5, after which the trial Court convicted the Appellant and sentenced him to twenty-five years imprisonment with hard labour. The record of the arraignment and conviction of the Appellant is at pages 8 – 10 of the Record of Appeal.

Dissatisfied with his conviction and sentence, the Appellant brought this appeal sequel to the leave granted by this Court on 8th July, 2020 and vide an initial Notice of Appeal filed on 20th July, 2020, all of which are at pages 11 – 15 of the Record of Appeal. The Notice of Appeal was however amended to the extant Amended Notice of Appeal filed by the Appellant on 23rd September, 2020 which was deemed properly filed and served by this Court on 12th May, 2022. The Record of Appeal was transmitted to this Court on 23rd September, 2020.

In pursuit of the appeal, parties filed and exchanged briefs of argument which they adopted on the 12th of May, 2022, the day the appeal was heard. In the Appellant’s Brief of Argument settled by M. O. Folorunsho Esq., which was filed on 23rd September, 2020 and deemed properly filed by this Court on 12th May, 2022, the following three issues were distilled for determination:
1. In view of the constitutional and statutory provisions, could it be said that the Appellant was properly arraigned, in order not to nullify the entire proceedings of trial Court in this case? (Grounds 2, 3 and 6 of the Amended Notice of Appeal).
2. Whether the trial Court possessed the power to enlarge the punishment prescribed by Section 11(c) of the National Drug Law Enforcement Agency Act engraved on the face of the charge filed against the Appellant. (Ground 4 of the Amended Notice of Appeal).
3. Whether in this case the trial Court exercised its discretionary power in line with the settled position of the law. (Ground 5 of the Amended Notice of Appeal).

APPELLANT’S SUBMISSIONS:
On issue one, earned Counsel for the Appellant cited Section 36(6) of the 1999 Constitution and Section 215 of the Criminal Procedure Act, 2004 and submitted that the combined interpretation of those provisions mandate that in an arraignment, the accused person must be placed before the Court unfettered unless the Court sees reason to the contrary; the charge or information must be read and explained to the accused person in the language he understands to the satisfaction of the Court by the Registrar or other officer of the Court; and the accused person shall be required to plead instantly thereto. He relied on the cases of AMAKO v STATE (1995) LPELR-451(SC) 1 at 24, paras. A – F, IDEMUDIA v STATE (1999) LPELR-1418(SC) 1 at 45 – 46, paras. B – D, UDEH v STATE (1999) LPELR-3292(SC) 1 at 17, paras. B – D and KAJUBO v STATE (1988) LPELR-1646(SC) 1 at 19, paras. B – C.

Learned Counsel submitted that the above provisions are meant to protect persons who are unlettered in the language of the Court and not represented by legal practitioners. He pointed out that for this reason, the trial Court is mandated to show in its record that the those requirements have been strictly complied with. He cited EWE v STATE (1992) 6 NWLR (Pt. 246) 147, per Kutigi, JSC (as he then was) at page 153, para. C, OLABODE v STATE (2009) 11 NWLR (Pt. 1152) 254 at 276, paras. B – C, YERIMA v STATE (2010) 14 NWLR (Pt. 1213) 25 at 45 and ADISA v STATE (2014) LPELR-22513(CA) 1 at 21 – 22, paras. G – B. He referred to the proceedings of the trial Court at page 8 of the Record of Appeal and pointed out that the Appellant was not represented in Court on the day of arraignment and the trial Court did not show the language elected to be spoken by the Appellant even as the trial Court had indicated that the charge was read and interpreted to the Appellant in Yoruba language. He further pointed out that this shows that the Appellant elected Yoruba language and this is confirmed by Exhibit PD3 which is the alleged confessional statement in Yoruba language. He argued that this shows that the Appellant is among the persons protected by the constitutional and statutory provisions earlier cited.

Learned Counsel also relied on the decisions of this Court in KOLEOSHO v FRN (2014) LPELR-22929(CA) 1 at 20 – 21, paras. A – B, UMARU v FRN (2013) LPELR- 20503(CA) 1 at 10, paras. B – F, ABDULLAI v FRN (2013) LPELR-21376(CA) 1 at 20 – 21, paras. D – A, as well as the Supreme Court decisions in RABE v FRN (2018) LPELR-46338(SC) 1 at page 26, paras. A – D and ORJI v FRN (2019) LPELR- 46534(SC) 1 at 2, paras. E – A, to show that compliance with those constitutional and statutory provisions relating to arraignment are mandatory, and the Court must show on the record that the charge was read, interpreted and explained to the accused and the name of the interpreter and the language in which the charge was interpreted. He argued that the record shows that the trial Court failed to satisfy the requirements of Section 36(6) of the Constitution and Sections 215, 218 and 285(1) of the Criminal Procedure Act. He submitted that this Court is bound by the printed record of appeal. He cited AUDU v FRN (2013) LPELR- 19897(SC) 1 at pages 7-8, paras. E – D, PATRICK v STATE (2018) LPELR- 43862(SC) 1 at pages 31 – 32, paras. E – B, PML (NIG) LTD v FRN (2017) LPELR-43480(SC) 1 at 22, paras. C- F and SHODIPO v FRN (2017) LPELR-42774(CA) 1 at 36 – 41, paras. F – A.

Learned Counsel submitted that the Respondent’s review of the fact of the case does not affect the invalidity of the arraignment of the Appellant which was done in contravention of the constitutional and statutory provisions. He also argued that the review cannot also be used against the Appellant because the Exhibits PD1, PD2, PD3, PD4 and PD5 were all tendered from the Bar by Counsel for the Prosecution and not by makers of the Exhibits and as such have no evidential value since the Appellant could not cross-examine on the said exhibits. He also argued that the failure to link the said documents to the Prosecution’s case is also fatal to the case of the Prosecution. He relied on the cases of EMMANUEL v UMANA & ORS (No. 2) (2016) 2 SC (Pt. 1) 1 at 116 -117, BELGORE v AHMED (2013) 8 NWLR (Pt. 1355) 60 at 100 – 101, paras. D – A and ABUBAKAR & ANOR v INEC & ORS (2019) 12 SCM 1 at 67 – 68, paras. A – I and A – C, and urged this Court to discharge and acquit the Appellant since the Appellant had been in prison for over 10 years and 2 months. He relied on ADEOYE v STATE (1999) 6 NWLR (Pt. 605) 74 at 91.

Arguing issues 2 and 3 together in alternative of issue 1, learned Counsel referred to page 10 of the Record of Appeal where the Appellant was sentenced to imprisonment for a term of 25 years with hard labour. He pointed out that the appellant was charged for infringement of Section 11(c) of the National Drug Law Enforcement Agency Act Cap. N30, Laws of the Federation of Nigeria 2004 (NDLEA Act) which did not make any provision for hard labour. He argued that the duty of a judge is to interpret the law as it is and not to add or subtract from the its plain meaning. Citing KOLEOSHO v FRN (supra) at page 28, NNAMUCHI v STATE (2015) LPELR-25744(CA) 1 at 31 – 32, USHIE v STATE (2012) LPELR-9705(CA) 1 at 21 – 22, paras. B – A. Counsel urged this Court to set aside the conviction of hard labour meted out to the Appellant by the trial Court which is in excess of the limit set by the law.

Learned Counsel further submitted that Section 11(c) of the NDLEA Act does not make provision for mandatory punishment and as such the Court had discretionary power in passing sentence as shown in UMAR v FRN (2018) LPELR- 46336(SC) 1 at pages 6 and 7 and GARBA v FRN (2014) LPELR-24591(CA) 1. He submitted that the Court of Appeal is in a position to review the sentence excessive or inadequate. He relied on ALFRED v STATE (2017) LPELR-42612(CA) 1 at pages 34-35, HARUNA v STATE (2019) LPELR-47568(CA) 1, per Abiriyi, JCA at page 12 USHIE v STATE (supra), NNAMUCHI v STATE (supra). He pointed out that the records shows that the only reason stated by the trial judge for sentencing the Appellant to 25 years imprisonment with hard labour was that he was not convinced that the accused will not repeat the offence if the sentence is reduced. He submitted that there was no basis for the reasoning of the trial Court. Citing the case of HAMMAN v STATE (2018) LPELR-45392(CA) 1, wherein the factors for sentencing of convicted accused persons were stated. He argued that the age of the Appellant as shown in Exhibit PD4 shows that at the time of his arrest he was just 25 years old and was still in the youthful and purposeful age of his life and if sent for correctional purpose he ought to be given opportunity of coming out strong and agile enough to be able to contribute his quota in the development of society.

Learned Counsel further submitted that the Appellant had only appeared once on the day of his arraignment and the matter was concluded on the same day following his guilty plea, and as such the Appellant who had no record of any criminality was penitent and did not waste the precious time of the Court. Counsel argued that this ought to operate in the mind of the trial Court. Counsel also prayed this Court to resolve the two issues in favour of the Appellant by reducing the sentence of 25 years imprisonment with hard labour to a lesser sentence, taking into account that the Appellant had been in prison custody since his conviction on 27th May, 2010.

In the Respondent’s Brief of Argument filed on 1st April, 2021 and deemed properly filed by this Court on 12th May, 2022, O. A. Ogar Esq., the learned Counsel for the Respondent raised a sole issue for determination which was:
1. Whether from the happenings at the trial Court, the trial Court is not justified in convicting and sentencing the Appellant.

RESPONDENT’S SUBMISSIONS:
Arguing per contra in support of his sole issue, learned Counsel for the Respondent referred to page 28 of the Record of Appeal and submitted that the trial Court had duly considered the necessary facts and the Appellant’s plea of guilty before convicting and sentencing the Appellant to 25 years imprisonment with hard labour. Counsel argued that the moment the accused person pleads guilty to an offence, the burden of proof in the prosecution is as light as feather of ostrich. He cited OMOJU v FRN (2008) 7 NWLR (Pt. 1085) 38 at 61 and SOLOLA v STATE (2005) All FWLR (Pt. 269) 1751 at 1782 and argued that it was upon the plea of guilty of the Appellant that the trial Court rightly and correctly dealt with the other supporting evidence.

Counsel however conceded that the trial Court was wrong to have added hard labour to the sentence of the Appellant. He however argued that not all mistakes committed by the trial judge will lead to a reversal of the judgment. He submitted that all the cases cited by the Appellant’s Counsel are not apposite to this case where it was determined by the trial Court based on the plea of guilty by the Appellant. He urged the Court to discountenance all the cases cited by the Appellant and dismiss this appeal.

It is serried that a Court of law is entitled to reformulate the issue or issues raised by the parties, in order to give the issue or issues some precision or clarity. In so doing, the Court may reframe or abridge some of the issues or even formulate a new issue so as to enable effectual determination of the case before it. See NEKA v ACB LTD (2004) 1 SC (Pt. 1) 32, AGBAREH v MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, MACHIKA v IMAM & ORS (2010) LPELR-4448(CA), OGBORO v REGTD TRUSTEES OF LAGOS POLO CLUB & ANOR (2016) LPELR-40061(CA) and SALAWU v FRN (2019) LPELR-50060(CA) 1 at 4 – 5.

Issue 1 as formulated by the Appellant questions the propriety of his arraignment before the trial Court and therefore, the validity of the entire proceedings leading to his conviction and sentence, while issues 2 and 3 deal with the propriety of the exercise of the Courts discretion, especially in relation to the sentence imposed on the Appellant by the trial Court. In other words, issues 2 and 3 are dependent upon whether the arraignment of the Appellant which was the foundation of the trial was proper. For the above reasons, I have reframed two issues for determination in this appeal, which are:
1. Whether the arraignment of the Appellant before the trial Court had contravened constitutional and statutory provisions as to nullify the entire proceedings leading to the conviction and sentence of the Appellant.
2. If issue 1 above is in the negative, whether the trial Court can enlarge the sentence prescribed by Section 11(c) of the National Drug Law Enforcement Agency Act engraved on the face of the charge filed against the Appellant.

RESOLUTION OF ISSUE 1:
Whether the arraignment of the Appellant before the trial Court had contravened the constitutional and statutory provisions as to nullify the entire proceedings leading to the conviction and sentence of the Appellant.

A criminal trial starts with the arraignment of an accused person before the trial Court. Arraignment is therefore the foundation of a criminal trial. The arraignment essentially consists of reading the charge or information to the accused person, or stating to him the substance of the charge or information and calling on him to plead thereto. 

The procedure to be followed in an arraignment is stipulated in Section 215 of the Criminal Procedure Act which provides as follows:
“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 objects to the want of such service and the Court finds that he has not been duly served therewith.”
In addition to Section 215 of the Criminal Procedure Act quoted above, the Constitution of the Federal Republic of Nigeria has, in safeguarding the right to fair hearing of persons accused of criminal offences, stipulated in its Section 36 (6)(a) and (e) as follows:
(a) Every person who is charged with a criminal offence is entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.
(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.

Discernible from the combined provisions of Section 215 of the Criminal Procedure Act, 2004 and Section 36(6)(a), (e) of the 1999 Constitution quoted above, are the following three conditions which are essential for a valid arraignment:
(i) That the accused person shall be placed before the trial Court unfettered unless the Court otherwise orders;
(ii) That the charge or information shall be read over and explained to the accused person in the language he understands by the Registrar or other officer to the satisfaction of the Court; and
(iii) That the accused person shall be called upon to plead instantly to the said charge or information.
The above three conditions for valid arraignment, which are conjunctive, have been restated in several decisions of the appellate Courts: OLANREWAJU v STATE (2020) LPELR-49569(SC), per Galinje, JSC at pages 4-5, paras. E – F, ADAMU & ANOR v FRN (2019) LPELR-48775(SC), per Kekere-Ekun, JSC at pages 25 – 26, paras. A – A, FRN v ABUBAKAR (2019) LPELR-46533(SC), per Onnoghen, JSC (as he then was) at pages 19 – 21, paras. D – E, IDEMUDIA v STATE (1999) LPELR- 1418(SC), per Ejiwunmi, JSC at pages 45 – 46, paras. B – D, AMAKO v STATE (1995) LPELR-451(SC), per iguh, JSC at page 24 paras. A – F, ADIGUN v STATE (2022) LPELR-57115(CA), per Adumein, JCA at pages 6 – 9, paras. E – B and Joseph v. State (2013) LPELR-22604(CA), per Abiru, JCA at pages 26 – 28, paras. G -D.
These statutory and constitutional provisions are aimed at not only safeguarding the fair hearing rights of persons accused of criminal offences, but also at ensuring a fair trial in criminal adjudications. In particular, the stipulation in Section 36(6)(a) reinforces Section 215 of the Criminal Procedure Act by mandating that the charge or information must be read and explained to the accused person in the language he understands and in detail. The Sections protect those accused persons who are unlettered in the language of the Court, which is English language.
In explaining the mandatory nature of Section 215 of the Criminal Procedure Act, the Supreme Court, per Oputa, JSC held in KAJUBO v STATE (1988) LPELR- 1646(SC), at page 19, paras. B – C, 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 merely semantics. No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea. Section 215 CPA sets out the mandatory rules required by law for a proper arraignment.”
Further in IDEMUDIA v STATE(1999) LPELR-1418(SC), the Apex Court reiterated the mandatory essence of Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution, which is in pari materia with Section 36(6)(a) of the extant 1999 Constitution, when His Lordship Katsina-Alu, JSC (as he then was) held that:
“The mandatory nature of Section 215 of the Criminal Procedure Law is buttressed by Section 33(6)(a) of the Constitution. Having said that, the question must be asked: What category of accused persons do Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution aim to protect? The language of the Court is English. A vast majority of the people in this country are not literate in English language. I believe and indeed I am convinced that the person the lawmaker had in mind to protect by these provisions was the illiterate Nigerian. If it were not so the phrase in the language he understands” would become meaningless. This phrase surely presupposes that the accused person does not understand the language of the Court which is English.
See also EWE v STATE (1992) LPELR-1179(SC), per Kutigi, JSC (as he then was) at page 8, paras. D – F; and KAJUBO v STATE (supra); Oputa, JSC, stated the essence of arraignment and the procedure that needs to be followed to comply with its mandatory legal requirements. In his words, the eminent Jurist held at page 19, paras. B – C as follows:
“Now arraignment is ad rationem ponere; it is calling an accused person to reckoning. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him? 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 over 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 expressions. This explanation should acquaint the accused with the essential ingredients of the offence charged and with the factual situation resulting in and giving rise to the offence charged, (iv) To make assurance doubly sure the trial judge should also satisfy himself that the explanation of the offence charged was adequate and that the accused understands what he is standing trial for. It is good practice for trial Courts to specifically record that “the charge was read and fully explained to the accused to the satisfaction of the Court” before then recording his plea thereto.”
In the instant case, the record of proceeding of the arraignment of the Appellant at the trial Court of 27th May, 2010 is at page 8 of the Record of Appeal. For ease of reference, I reproduce same below:
“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABEOKUTA, OGUN STATE
BETWEEN
FEDERAL REPUBLIC OF NIGERIA
AND
SAEED AKIODE
CHARGE NO. FHC/AB/30C/2010
COMPLAINANT
ACCUSED PERSON
Case called.
Moses Ideho Esq appears for the Prosecutor.
Accused person in Court.
COURT:
You may proceed. (Charge read and interpreted in the Yoruba language). Accused person understands the charge and pleads guilty.
From the above excerpt of the trial Court’s record of the arraignment of the Appellant, can it be said that the trial Court strictly complied with the mandatory provisions of Section 215 of the Criminal Procedure Act and 36(6)(a) of the 1999 Constitution? Undoubtedly, it did not. Firstly, it is apparent from the record that the accused person was not represented by Counsel on that date when he was arraigned. It is important to state that Counsel are professionally officers of Court whose primary duty is first to assist the Court to deliver justice while also representing the interest of their clients. Thus, a Court of law ought to be more watchful where accused persons are not represented by counsel and ensure that no undue advantage is taken of the absence of counsel for such accused persons.
Secondly, the trial Court did not state what language the Accused person (Appellant) speaks and understands. The trial Court merely stated that: ‘’charge read and interpreted in Yoruba language”. Those words as used by the trial Court could mean that the charge was both read and interpreted in Yoruba language, since it was not indicated in what language the charge was read before being interpreted to Yoruba language.
Thirdly, the trial Court did not state who read the charge and who interpreted same to the Appellant and whether such was done to the satisfaction of the Court. Apart from the right to be informed of the charge in the language an accused person understands, which is guaranteed in Paragraph (a) of Subsection (6) of Section 36 of the 1999 Constitution, Paragraph (e) of the same subsection guarantees for an accused person the right to have, without payment, an interpreter if he cannot understand the language used at the trial of the offence. The combined effect of the said two paragraphs of Section 36(6) is that an accused person who does not hear the language of the Court should be provided with the services of an interpreter, free of charge, who shall interpret for the accused person the entire proceedings from arraignment to its conclusion, especially where he is not represented by a Counsel.
In other words, where, as in the instant case, the accused is not represented by counsel, the duty is on the trial Court to enquire what language the accused person understands and if he does not understand the language of the Court, to provide an interpreter. If the accused person is represented by counsel, the counsel has a duty to inform the Court that an interpreter is required. This is because the failure to provide an interpreter cannot be invoked on appeal by an appellant who was represented by counsel at trial unless he requested for same at the appropriate time and was denied. See LANRE v STATE (2018) LPELR- 45156(SC), per Aka’ahs, JSC at pages 37 – 38, paras. C -C and ONYIA v STATE (2008) LPELR-2743(SC), per Muhammad, JSC at pages 35 – 36, paras. F – D.
In the instant case where the Appellant did not understand the language of the Court and was not represented by Counsel when he was arraigned before the trial Court, the Court was duty bound to reflect in its proceedings the language which the accused person understands and the provision of an interpreter to interpret the proceedings for the Appellant. In fact, the standard practice of showing compliance with this requirement is to reflect in the record of the Court the name of the interpreter provided and the fact that he/she was sworn or affirmed to interpret the proceedings from the language of the Court to the language understood by the accused person. See RABE v FRN (2018) LPELR-46338(SC), Peter-Odili, JSC at page 26, paras. A – D, UMARU v FRN (2013) LPELR-20503(CA), per Galinje, JCA (as he then was) at page 10, paras. B – F and ABDULLAI v FRN (2013) LPELR-21376(CA), per Abubakar, JCA (as he then was) at pages 20 – 21, paras. D – A. In the instant case, the record of the trial Court did not show the provision of and the name of such interpreter and whether the interpreter was sworn or affirmed to interpret the proceedings. The Court merely stated in bracket: “(Charge read and interpreted in the Yoruba language).”
Thirdly, Section 218 of the Criminal Procedure Act requires that, where, as in this case, the accused person pleads guilty to the charge, the trial Court shall record his plea as nearly as possible in the words used by him, and if satisfied that the accused person intended to admit the truth of all the essential elements of the offence charged and of which he has pleaded guilty, the Court shall convict him of that offence. In SHODIPO v FRN (2017) LPELR-42774(CA), this Court, per Tsammani, JCA held at pages 36 – 41, that the purpose of recording the plea of guilty of an accused person “as nearly as possible in the words used by him” is to ensure that the accused’s plea of guilt is unequivocal and unambiguous.
In YUSUF v STATE (2011) 18 NWLR (Pt. 1279) 853, the Apex Court, per Rhodes- Vivour, JSC held at page 881, paras. G – H, 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 and that for that reason there is the primary duty on the trial judge to ensure that mere was compliance. This duty on the trial Court was emphasized in EWE v STATE (supra), at page 6-7, paras. D – D, KAJUBO v STATE (supra), per Wali, JSC and OLABODE v STATE (2009) 11 NWLR (Pt. 1152) 254, per I. T. Muhammad, JSC (as he then was) at page 276, para. C.
As shown above, the trial Court in this instance merely recorded the Appellant’s guilty plea in a reported speech, instead of recording the words used by him. The trial Court merely stated that: “Accused person understands the charge and pleads guilty”.
In considering the validity of an arraignment made by a trial Court under an exactly similar situation, this division of the Court, per Uwa, JCA, had held in the case of KOLEOSHO v FRN (2014) LPELR-22929(CA) 1 at pages 20 – 21, paras. A – B, as follows:
“No doubt the trial Court did not comply with the provisions of Sections 215 and 218 of the Criminal Procedure Act and the Constitution. An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the Court before the plea is taken. See OYEDIRAN v THE REPUBLIC (1967) NMLR 122. All that the trial Court recorded is: “Charge read and interpreted in Yoruba language. Accused person understands and pleads guilty.”
This recording is wrong, it did not state the language in which the charge was read before interpretation in Yoruba language. The proceedings did not show who read the charge and who interpreted. In compliance with Section 218 of the Criminal Procedure Act and Section 36(6)(a) – (e) of the Constitution, the appellant should have been informed by the interpreter (none was mentioned) the nature and gravity of the offence charged in a language she understands, that she was going to be sentenced to life imprisonment or lesser terms whatsoever the case may be, based on her admission of guilty plea… The failure to properly interpret the charge and its consequential punishment to the accused/appellant has occasioned miscarriage of justice, having been denied right of fair hearing. There is nothing on record to show that the trial Court directed the Registrar or any other officer of the Court to read and explain the charge to the accused person before the plea was taken in a language she understood.”
It is therefore settled that trial Courts must not only comply with the mandatory constitutional and statutory requirements for an arraignment as enshrined in Section 36(6)(a) and (e) of the Constitution and Sections 215, 218 and 285(1) of the Criminal Procedure Act, but must show the fact of such compliance on the record of the Court.
It is pertinent for me to add that all Courts of record created by law have a solemn duty to keep record of their proceedings. Apart from establishing superior Courts of record in Section 6 and empowering the National and Houses of Assembly to establish other Courts of record, the Constitution has stipulated in Section 36(7) that when any person is tried for any criminal offence, the Court or tribunal shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the judgment in the case within 7 days of the conclusion of the case.​
In our country where Court proceedings are still manually recorded, judges who record such proceedings have a bounden duty to ensure that the Court proceedings are not only recorded in compliance with legal and procedural requirements, but are also recorded in a coherent and comprehensible manner, bearing in mind that the records which they keep are public records, meant not only for the Court and the benefit of the parties, but for public usage and for posterity.
As held by this Court in SHODIPO v FRN (supra) and KOLEOSHO v FRN (supra), cases which record of arraignment are on all fours with the one in the instant appeal, the recording by the trial Court that: “charge read and interpreted in the Yoruba language. Accused understands the charge and pleads guilty”, is certainly not in compliance with the mandatory requirements for an arraignment where the accused person does not understand the language of the Court and was not represented by counsel. It is trite that the failure to comply with the mandatory requirements for a valid arraignment contained in Sections 215 and 218 of the Criminal Procedure Act and Section 36(6)(a) and (e) of the 1999 Constitution renders the entire trial a nullity. See KAJUBO v STATE (supra), EREKANURE v STATE (1993) LPELR-1155(SC), per Belgore, JSC (as he then was) at pages 12 – 13, paras. G – C, IBRAHIM v STATE (2013) LPELR-21883(SC), per Aka’ahs, JSC at page 19 paras. B – D.
In KRONAGHEA v FRN (2018) LPELR-43684(CA), this Court, per Nimpar, JCA held at page 34 paras. C – E, that:
“It is trite that a valid arraignment is a very important initial step in the trial of a person in a criminal charge and that an improper arraignment is not a matter of mere technicality. Without a valid arraignment, no trial in law would have commenced, and no matter the evidence adduced, the trial and subsequent judgment would be rendered null and void. See OKEKE V. STATE (2003) 15 NWLR (PT 842) 25.
See also DIBIE & ORS v STATE (2007) LPELR-941(SC), per Ogbuagu, JSC at pages 35 – 37, paras. B – D, OKEMMIRI v FRN (2015) LPELR-24485(CA), per Mbaba, JCA at pages 49 – 53, paras. C – C and EFFIONG v STATE (2017) LPELR-49918(CA), per Tukur, JCA at page 12 paras. C – E.”
Following the decisions of this Court in SHODIPO v FRN (supra) and KOLEOSHO v FRN (supra) whose record of arraignment are on all fours with the one in this case hereby resolve the first issue in favour of the Appellant. I hold that the arraignment of the Appellant before the trial Court had contravened constitutional and statutory provisions and as such the entire proceedings leading to the conviction and sentence of the Appellant is a nullity.

As stated earlier, issue two is dependent on a negative resolution of issue 1. With the finding that the entire trial of the Appellant is a nullity as a result of invalid arraignment, it is needless to consider issue 2. Suffice it only for me to state that the trite position is that the sentence to be imposed by a Court must be in accordance with that prescribed by the statute creating the offence and/or providing the punishment for the offence. Hence, a Court can neither impose a higher sentence than the one provided for, nor impose a sentence which the statute prescribing the offence has not provided for. See EKPO v STATE (1982) 1 NCR 34, ASAKITIKPI v STATE (1993) 5 NWLR (Pt. 296) 641 and KOLEOSHO v FRN (supra), per Kalio, JCA at page 28. Section 11(c) of the National Drug Law Enforcement Act Cap. N30, LFN, 2004 under which the Appellant was charged and tried has not made hard labour a part of the punishment it prescribed. The trial Court was therefore wrong to have added hard labour to the sentence it imposed on the Appellant.

On the whole therefore, I hold that the entire trial of the Appellant is a null and void having contravened the provisions of Section 215 and 218 of the Criminal Procedure Act and Section 36(6)(a) and (e) of the 1999 Constitution.

Ordinarily, where a trial is declared a nullity as done in this case, the order to make is one of retrial. However, in YAHAYA v STATE (2002) LPELR-3508(SC), the Supreme Court, per Uwais, CJN stated the circumstances under which an appellate Court may order a retrial when he held at pages 12 – 13, paras. E – D, that:
“The principles are that in ordering a retrial, the facts of the case must contain the following factors:- (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, the Court is unable to say that 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 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. (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. I am aware that all these factors must exist conjunctively for a retrial to be ordered.”​
In the instant appeal, the record shows that the Appellant was convicted and sentenced to 25 years imprisonment with hard labour on 27th May, 2010. Thus, the Appellant has been in prison for over 12 years. In ADEOYE v STATE, the Supreme Court took into account that the Appellant, who was charged for murder, had spent 8 years in prison and after declaring the trial a nullity, discharged and acquitted the Appellant and refused to order a retrial.
Having spent this number of years, I hold that having already spent more than 12 years in prison, an order of retrial will be oppressive. Consequently, I declare the trial of the Appellant null and void and set aside the conviction and sentence passed on the Appellant by the trial Court. The Appellant is hereby discharged.

SAIDU TANKO HUSSAINI, J.C.A.: The success or failure of the prosecution’s case in a criminal trial depends to a large extent on the proper arraignment of the accused person and this includes:
1. The reading of the charge(s) and the taking of the plea of the accused person.
2. The charge must be read and interpreted to the accused in the language spoken by him if he cannot understand the language of the Court.

Given the record of appeal before us, the manner by which the appellant was arraigned at the trial Court leaves much to be desired and my Lord in the leading judgment has spoken very eloquently on the shortcomings associated with the arraignment of the appellant at the trial Court. The absence of a sworn interpreter to interpret proceedings at the trial when the appellant was arraigned is a serious constitutional breach to his right to fair hearing particularly when it is clear that the accused/appellant does not speak the language of the Court.

For the more elaborate reasons so very well marshaled out in the leading judgment, I too will allow this appeal hence, the conviction and sentencing of the appellant at the Federal High Court sitting in Abeokuta, Ogun State on 27th May, 2010 to a term of imprisonment of 25 years is set aside and the appellant hereby is discharged.

Ordered accordingly.

MOHAMMED DANJUMA, J.C.A.: I have the privilege to read in draft, the lead judgment of my learned brother, ABBA BELLO MOHAMMED JCA. I agree with the reasoning and conclusion that the Appellant is hereby discharged. I abide by all the consequential orders in the lead judgment.

Appearances:

Musibau Adetunbi, SAN, with him, M. O. Folorunsho, Esq, and E. Y. Ajayi, Esq, For Appellant(s)

O. A. Ogar, Esq, with him, O. F. Awoyomi, Esq, For Respondent(s)