AUDU YUSUF v. THE STATE
(2010)LCN/3884(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of June, 2010
CA/K/59/C/2009
RATIO
CONDITIONS THAT MUST BE SATISFIED WITH FOR THERE TO BE A VALID AND PROPER ARRAIGNMENT OF AN ACCUSED PERSON
For a valid and proper arraignment of an accused person, the following conditions, as contained in Section 215 of the Criminal Procedure Law of Lagos State, 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 officers of the court. (c) He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law). (2) Failure to comply with any of the conditions stated in paragraph (1) above will render the whole trial a nullity. (3) Thus an arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the court, followed by taking his plea. See KAJUBO V. THE STA TE (1998) 1 NWLR (PT.73) 721 at 723 and TOBBY V. THE STATE (2001) 10 NWLR (PT.720) 23 at 31. PER BABA ALKALI BA’ABA, J.C.A
RIGHT OF A PERSON WHO IS CHARGED WITH A CRIMINAL OFFENCE TO BE INFORMED PROMPTLY IN THE LANGUAGE THAT HE UNDERSTANDS AND IN DETAIL OF THE NATURE OF THE OFFENCE
Section 36(6) of the 1999 Constitution provides as follows:-“36. (6) Every person who is charged with a criminal offence shall be entitled to; (a) be informed promptly in the language that he understands and in detail of the nature of the offence.” PER BABA ALKALI BA’ABA, J.C.A
ORDER OF RE-TRIAL: GUIDELINES FOR ORDERING A RETRIAL
The Supreme Court of Nigeria in the case of ABODUNDU VS. QUEEN (1959) SCNLR 162 at 166 provided a guide for ordering a retrial as follows:- “(a)The court must be satisfied 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, and to invoke the proviso to section 11(1) of the Ordinance. (b) That leaving aside the error of irregularity, the evidence taken as a whole discloses a substituted case against the appellant. (c) That there are no such special circumstances that will 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 my other person of the conviction or acquittal of the appellant, are merely trivial. (e) That to refuse an order for a retrial will occasion a greater miscarriage of justice than to grant it.” PER BABA ALKALI BA’ABA, J.C.A
AMENDED CHARGE: CONSEQUENCE OF NOT OBTAINING A FRESH PLEA WHERE A CHARGE HAS BEEN AMENDED
It is the law that since the amended charge constituted a new charge, a fresh plea is required and failure to obtain such fresh plea renders the trial subsequent to the amendment null and void. It seems clear, therefore, that when the Appellant did not plead afresh to the old Court, ie, the third Court, he did not put himself on trial afresh in respect of the old Court, and as such, he should not have been tried by the trial Court on a count he did not take any fresh plea and be convicted thereon. Accordingly, this appeal hereby succeeds. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
ORDER: PROPER ORDER TO MAKE IN THE CIRCUMSTANCES WHERE THE PURPORTED TRIAL OF THE ACCUSED HAS BEEN DECLARED A NULLITY
In Rufai vs. State (2001) 13 N.W.L.R Part 731 page 718, the Supreme Court held, after relying on its previous decisions in Abodundu and 4 ors vs. Queen (supra) and Kajubo vs. The State (supra), that the proper order to make in the circumstance where the purported trial of the appellant has been declared a nullity, is an order for a fresh trial of the Appellant by another Judge of the High Court. Accordingly, the said criminal charge No. KDH/KAD/29C/2003 will be and is hereby sent back to the Chief Judge of Kaduna State for re-assignment and retrial before another Judge of the Kaduna State High Court. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
JOHN IYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
AUDU YUSUF – Appellant(s)
AND
THE STATE – Respondent(s)
BABA ALKALI BA’ABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court, Kaduna State Judicial Division delivered on the 3rd day of June, 2006 by Hon. Justice A. A. Othman whereby the appellant was convicted and sentenced to death by hanging for the offence of culpable homicide punishable with death under Section 221 of the Penal Code as contained at pages 79 – 94 of the printed record.
The appellant, being dissatisfied with the judgment of the lower court, filed five grounds of appeal against the judgment to be found at pages 96 – 99 of the printed record.
The brief facts of the case are as follows:
The appellant, Audu Yusuf, was charged along with one Lawal Musa, on a three count charge of conspiracy, armed robbery and culpable homicide punishable with death contrary to Section 5(b), 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap. 398, Laws of the Federation of Nigeria 1990 and Section 221 of the Penal Code. The said charges are contained at pages 2 – 8 of the printed record. The trial commenced before High Court No.4, Kaduna presided over by Hon. Justice Umaru Adamu, where the charges were read and explained to the accused and their plea taken. However, the case was transferred to another Judge upon the retirement of the former Judge hence the case started de novo.
The respondent’s application to amend counts one and two of the charges namely criminal conspiracy and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.398, Laws of the Federation of Nigeria 1990, were read and explained to the accused persons who pleaded not guilty as shown at page 30 of the printed record. However, it appears from the printed record that the 3rd count charge of culpable homicide punishable with death was neither read nor explained to the appellant. The appellant plea was therefore not taken in respect of the 3rd count charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code.
The prosecution opened its case and called three witnesses and tendered four Exhibits in evidence to prove it’s case while the appellant testified on his own behalf. At the conclusion of the trial, the appellant, was discharged and acquitted on the charges of criminal conspiracy and armed robbery but was convicted for the offence of culpable homicide punishable with death as contained at pages 88 – 94 of the printed record, where the learned trial Judge, inter alia, held:
“The unchallenged testimony of PW1 goes to confirm that it was the same 1st accused that was responsible for the death the said Shuaibu Lawal. I find the defence of DW1 unacceptable because the evidence of PW1 and PW2 has not been challenged in anyway. From the fore going therefore I did not find the 2nd accused person guilty on the charge of culpable Homicide and the 1st count charges because he has been exonerated by the 1st accused and there is nothing before to believe otherwise he is therefore, hereby, discharged on all the 3 count charges. The 1st accused however, I find him guilty of he offence of murder of Shuaibu Lawal under Section 221 Penal Code on account on evidence of PW1 and PW2 which remained unchallenged and convict him accordingly. There was no way the deceased could have been found without the assistance and cooperation of the 1st accused who gave an account of how the deceased was killed in which he fully participated. I find him guilty and convict him accordingly… The law did not give me any latitude in the offence like this convict must be punished in accordance with the law. The punishment attracts death penalty. I therefore, hereby, sentence him to death at the leisure of the executive governor of Kaduna State.”
Being dissatisfied with the judgment, the appellant filed a notice of appeal containing five grounds of appeal to be found at pages 97-98 of the printed record.
Briefs of argument were filed and exchanged by the parties in accordance with the rules of Practice and Procedure of this Court. At the hearing of the appeal which came up for hearing on the 13th day of April, 2010, counsel to the parties adopted their respective briefs and advanced oral argument in amplification of their respective briefs.
The learned counsel for the appellant, A.T. Kehinde, Esq, formulated three issues for determination of this appeal as follows:-
“(i) Whether the failure to properly arraign the appellant in court, and his plea taken on the offence of culpable homicide was not germane to the entire proceedings upon which the appellant was convicted and subsequently sentenced to death.
(ii) Whether from the totality of the evidence adduced at the trial the prosecution has sufficiently proved beyond reasonable doubt the guilt of the appellant to justify his conviction and sentence to death.
(iii) Whether the trial and conviction of the appellant on the evidence of P.W1 and P.W2 without any consideration of the evidence of the appellant was not a truncation of his constitutional right of fair hearing.”
The learned counsel for the respondent, Tawo E. Tawo Esq, also formulated two issues for the determination of this appeal at page three of the respondent’s brief as follows:-
“(i) Whether the appellant was not aware of or understand the offence he was charged with i.e culpable homicide punishable with death thereby occasioning a miscarriage of justice in his trial and conviction.
(ii) Whether assuming the trial is declared a nullity and having regard to the totality of the evidence adduced and the circumstances of the case what consequential order should be made?”
After a careful examination of the issues formulated by the learned counsel for the parties, I find that issue No.1 formulated by the learned counsel for the appellant is more or less the same as the Respondents issue No.1, I therefore, adopt issue No.1 formulated by the learned counsel for the appellant for the determination of this appeal. In my view the issue is all encompassing and sufficient for the determination of the appeal.
Arguing issue number one, learned counsel for the appellant, submitted that it is the requirement of the law that all the counts in the charge have to be read in the open court to the accused and his plea taken on all the counts and any count not read to the accused is deemed abandoned.
He further submitted that the arraignment of an accused person is fundamental to the validity of the entire proceedings.
Learned counsel for the appellant stressed that it is the law that where a matter commenced de novo, the charge against accused person ought to be read over and explained to him afresh.
He pointed out that this principle of law which require the taking of a fresh plea after the amendment of a charge is tied the provision of the Constitution as a safeguard of ensuring fair hearing to an accused. See PRINCET VS. STATE (2002) 12S.C. (Pt.1) 137 at 144 – 147, AFOLALUVS. THE STATE (2009) 3 NWLR (Pt.1127) 160 at 176, LUFADEJU VS. JOHNSON (2007) 3 S.C (Pt. 11) 134 at 149 – 150, and ENIBO VS. STATE (2007) 5 S.C 135 at 147.
It is the submission of the learned counsel for the appellant that the arraignment and taking the plea of an accused person is the commencement of a criminal trial and it is the stage when the accused person appears at the court, the charge is explained to his understanding and his plea taken in person not even through his counsel. He emphasised that the taking of the plea of the accused person is a very fundamental aspect of any criminal proceedings which must be strictly complied with in a criminal trial.
It is argued that no matter how well conducted, without a plea of the accused first and properly taken the trial is a nullity.
Reference was made to the Sections 187, 202 of the Criminal Procedure Code and Section 36(6) of the 1999 Constitution by the learned counsel for the appellant who submitted that there are relevant authorities in a case of this nature.
Relying on the provisions of the Criminal Procedure Code and the Constitution stated above, learned counsel for the appellant, submitted that from the printed record no where was the charge of culpable homicide punishable with death was read to the appellant when the trial commenced de novo. He pointed out that the failure of the trial to comply with the provisions of the Criminal Procedure Code amounts to a substantial irregularities rendering the entire proceedings a nullity.
He urged the court to allow the appeal and discharge the appellant, and having regard to the length of time the appellant spent in prison, he urged the court not to order a retrial.
In his response, the learned counsel for the respondent in his brief of argument, stated that a criminal trial commences with the arraignment of the accused person whereby the charge disclosing the offence or offences against the accused is read and explained to the accused in the language he understands and thereafter he is called upon to make his plea of either guilty or not guilty as the case may be. He referred to Section 187(1) of the Criminal Procedure Code and submitted that the procedure provided under section 187 of the said section is mandatory.
Learned counsel for the respondent conceded that the failure to comply with the provision of Section 187(1) of the Criminal Procedure Code is a procedural irregularity that goes to the root of the criminal trial and affects the outcome of the trial. Relying on the authority of the Supreme Court case of KAJUBO v. THE STATE (1988) 1 NWLR (PT.73) 721 by the learned counsel for the respondent, who submitted that in the referred case, the Supreme Court of Nigeria interpreted the provision of Section 215 of the Criminal Procedure Law which is similar to Section 187(1) of the Criminal Procedure Code. He also cited the cases of EWE V. THE STATE (1992) 6 NWLR (PT.246) 147, ISIAKA RUFAI V. THE STATE (2001) 13 NWLR (PT.718) at 729 – 733.
Reference was also made to the provisions of Section 187(2) of the Criminal Procedure Code and the cases of CHUKWU V. STATE (1994) 3 NWLR (PT.335) 640 at 655 and PAULINUS TOBBY V. THE STATE (2001) 10 NWLR 23 at 33 by the learned counsel for the respondent who further submitted that from the foregoing provisions and authorities, one may be right to say that taking the plea of the accused person charged with an offence of culpable homicide punishable with death is mere formality which does not affect the outcome nor nullify the process.
Accordingly, the learned counsel for the respondent having regard to the provisions of Section 187(1) and (2) of the Criminal Procedure Code, taking of plea in capital offences is not necessary.
It is further argued by the learned counsel for the respondent that, the court’s failure to read and explain the charge to the appellant in language he understand and not taking his plea a second time did not occasion any miscarriage of justice.
In conclusion, learned counsel for the respondent, urged the court to dismiss the appeal.
For a valid and proper arraignment of an accused person, the following conditions, as contained in Section 215 of the Criminal Procedure Law of Lagos State, 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 officers of the court.
(c) He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).
(2) Failure to comply with any of the conditions stated in paragraph (1) above will render the whole trial a nullity.
(3) Thus an arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the court, followed by taking his plea.
See KAJUBO V. THE STA TE (1998) 1 NWLR (PT.73) 721 at 723 and TOBBY V. THE STATE (2001) 10 NWLR (PT.720) 23 at 31.
Both counsel in their respective briefs referred to Section 187 of the Criminal Procedure Code which provides as follows:
“187. (1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”
Learned counsel for the appellant also referred to Section 208 of the Criminal Procedure Code which appears to me to be relevant on the determination of this appeal. Section 208 of the Criminal Procedure Code reads as follows:-
“208. (1) Any court may alter or add to any charge or frame a new charge at any time before judgment is pronounced.
(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.” (underline mine).The issue of taking a fresh plea after amendment of charge is therefore a fundamental procedure in a criminal trial. In the Supreme Court case of ATTAH V. THE STATE (1993) 7 NWLR (PT.308) 257 at 274, the Supreme Court of Nigeria, held that in a one count charge the position is very clear Section 164(1) of the Criminal Procedure Law of Lagos State provides as follows:-
“If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 of this Act, the court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.It is clear that the provision of Section 215 and 164 of the Criminal Procedure Law of Lagos State is in pari materia with the provisions of Sections 187(1) and 208 of the Criminal Procedure Code. The stated requirement of the law in both the Criminal Procedure Law of Lagos State and the Criminal Procedure Code are mandatory and must therefore be strictly complied with in all criminal trial as they have been specifically provided to guarantee the fair trial of an accused person and to safe guard his interest at such a trial, failure to satisfy any of them will render the whole trial defective and null and void.
It appears from the provisions of Section 36(6) that the failure of the learned trial Judge to take the plea of the appellant when the case commences de novo as clearly shown on the record at page 30 where only two counts charge of conspiracy and robbery were read and explained to the appellant and his plea taken that there was also a breach of the provision of the constitution. It is clear from the record that the 3rd count charge of culpable homicide punishable with death under Section 221 of the Penal Code was never read to the appellant consequently his plea in respect of the third count was never taken by the court. The failure of the learned trial Judge to take plea of the appellant in respect of the 3rd count also amounted to breach of the provision of Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria which has also rendered the entire proceedings a nullity.
Section 36(6) of the 1999 Constitution provides as follows:-
“36. (6) Every person who is charged with a criminal offence shall be entitled to;
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.”
Having regard to the aforesaid, the failure of the learned trial Judge to comply with the provisions of Section 187(1) and 208 of the Criminal Procedure Code as well as the provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria has without doubt rendered the entire trial and conviction of the appellant a nullity.
The Supreme Court of Nigeria in the case of ABODUNDU VS. QUEEN (1959) SCNLR 162 at 166 provided a guide for ordering a retrial as follows:-
“(a)The court must be satisfied 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, and to invoke the proviso to section 11(1) of the Ordinance.
(b) That leaving aside the error of irregularity, the evidence taken as a whole discloses a substituted case against the appellant.
(c) That there are no such special circumstances that will 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 my other person of the conviction or acquittal of the appellant, are merely trivial.
(e) That to refuse an order for a retrial will occasion a greater miscarriage of justice than to grant it.”
In view of the aforesaid, the conviction and sentence of the appellant by Hon. Justice A.A. Othman of the Kaduna State High Court Kaduna in suit No. KDH/KAD/29C/2003 delivered on 2nd day of June, 2008 is a nullity and therefore void.
Applying the guideline provided by the Supreme Court of Nigeria in ABODUNDU (supra) the said suit KDH/KAD/29C/2003 is hereby remitted to the Chief Judge of the Kaduna State High Court for a retrial before another Judge other than Hon. Justice A. A. Othman of the Kaduna State High Court.
JOHN INYANG OKORO, J.C.A.: I read in draft the judgment just delivered by my learned brother Ba’aba, J.C.A and I agree with both his reasoning and conclusion that the appeal has merit and ought to be allowed. There is no doubt that the court below failed to comply with section 187(1) and 208 of the Criminal Procedure Code and section 36 (6)(a) of the constitution of the Federal Republic of Nigeria, 1999. Having failed to read the charge to the Appellant, particularly that relating to culpable homicide punishable with death when the trial commenced de novo, that failure amounts to a substantial irregularity which vitiates the entire proceedings and renders it a nullity. Accordingly, I agree that this appeal should succeed and I so order. I abide by the consequential order in the lead judgment especially that remitting the charge for retrial before another Judge of the Kaduna State High Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the lead judgment of my learned brother, Baba Alkali Ba’aba, J.C.A and I am in agreement with the same without any reservation.
There is no doubt that the criminal proceedings against the Appellant and one other accused person commenced de novo before the trial Court, and on 9/6/08 the charges were read over and explained to the accused persons individually.
There were three counts in the charge but, from the record of proceedings of the trial Court on that same 9/6/05 depicted at page 35, only two counts were read over and explained to the 1st and 2nd Accused persons and to which they pleaded not guilty. There is not a scintilla of indication that the third count which bordered on offence of culpable homicide punishable under section (2) (b) of the Robbery and Firearm (Special Provisions) Act Cap 398. LFN, 1990 was read over and explained to the 1st and 2nd Accused persons for fresh plea before the new trial Court.
Hearing de novo means a new hearing or trying matter anew as if it had not been heard before, and, as if no decision had been previously rendered.
The proceedings of the said 9/6/05 as recorded at page 35 of the record of appeal went thus:
“Court: The charges read explain to all the accused (criminal conspiracy and armed robbery) section 5 (b) robbery and fire arms special provisions) Act Cap 398 laws of the federation 1990.
SIGN
JUDGE
9/6/05
1st Accused: I understand the 2 count charges as read and explain to me not guilty.
SIGN
JUDGE
9/6/05
2nd Accused: I understand the 2 Count charges as read and explained to me I am not guilty.”
SIGN
JUDGE
0/6/05
It is clear from the proceedings before the lower Court that no fresh plea was taken by the Appellant on the third count. Only two counts were read out and explained to the Appellant and his co-accused. It is the law that since the amended charge constituted a new charge, a fresh plea is required and failure to obtain such fresh plea renders the trial subsequent to the amendment null and void.
It seems clear, therefore, that when the Appellant did not plead afresh to the old Court, ie, the third Court, he did not put himself on trial afresh in respect of the old Court, and as such, he should not have been tried by the trial Court on a count he did not take any fresh plea and be convicted thereon. Accordingly, this appeal hereby succeeds. As precisely stated in the lead judgment, the conviction and sentence of the appellant is a nullity and therefore void. In Rufai vs. State (2001) 13 N.W.L.R Part 731 page 718, the Supreme Court held, after relying on its previous decisions in Abodundu and 4 ors vs. Queen (supra) and Kajubo vs. The State (supra), that the proper order to make in the circumstance where the purported trial of the appellant has been declared a nullity, is an order for a fresh trial of the Appellant by another Judge of the High Court. Accordingly, the said criminal charge No. KDH/KAD/29C/2003 will be and is hereby sent back to the Chief Judge of Kaduna State for re-assignment and retrial before another Judge of the Kaduna State High Court.
Appearances
A. T. KEHINDE, ESQ., WITH A. O. OBI ESQ., AND CO. OBARO ESQ.For Appellant
AND
TAWO E. TAWO, ESQ., WITH C. C. UMARU (MRS)For Respondent
