BAKO v. STATE & ORS
(2022)LCN/16039(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, March 28, 2022
CA/YL/115C/21
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
AMINU BAKO APPELANT(S)
And
1. THE STATE 2. IBRAHIM BELLO 3. IBRAHIM MOHAMMED RESPONDENT(S)
RATIO
ON WHAT CONSTITUTE PROPER ARRAIGNMENT
A valid arraignment is the commencement of a criminal trial where the charge would be read and explained to the accused person who would be asked whether he/she is “guilty” or “not guilty” of the offence(s) charged, the accused person would either plead guilty or not guilty. Section 187 (1) of the Criminal Procedure Code (C.P.C.) provides thus:
“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.”
(Underlined mine for emphasis)
Compliance with the above provision is mandatory for a valid arraignment of the Appellant, in the absence of any plea by the Appellant to count one (1) of the charge of Criminal Conspiracy, the trial Court would have wasted precious judicial time as the entire proceeding would be a nullity -PER CHIDI NWAOMA UWA, J.C.A.
CONDITIONS WHICH RENDERS A TRIAL A NULLITY
Where a charge is not read and explained to an accused person and where no plea is taken as in the present case, the whole trial becomes a nullity. The conditions as laid out by the Supreme Court in UDO v. THE STATE (2006) (supra) are as follows:
1. The accused person must appear before the Court.
2. The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
3. The accused shall be called upon to plead instantly to the charge.
Further, explaining the offence to the understanding of the accused person without plea being taken does not make for a valid plea. The learned counsel to the 1st Respondent had argued that count one (1) of the charge was read and understood by the Appellant and should be taken as a plea, this is erroneous. The plea of an accused person should be clear and on record, the requirements are not directory but, mandatory they must be strictly complied with in all criminal trials. In SUNDAY OFFOR & ANOR v. THE STATE (2012) LPELR – 19658 (SC) PP. 20 – 21, PARA. C, (also, (2012) 18 NWLR (PT. 1333) P. 421 and (2012) 12 SC II P. 21) his lordship Ogunbiyi, JSC on the interpretation of Section 187(1) of the Criminal Procedure Code (C.P.C.) in respect of arraignment and plea of an accused person held thus:
“… Suffice it to say however that by the use of the word shall, in Subsection 187 (1) supra, the following procedure ought to be strictly followed; that is to say that the charge must first be read out and explained to the accused in the open Court, thereafter he shall be asked whether he is guilty or not of the offence or offences charged. – PER CHIDI NWAOMA UWA, J.C.A.
PROCEDURE FOR A VALID ARRAIGNED IN COURT
See also, UDO v. THE STATE (2006) (supra), SOLOLA v. STATE (2005) (supra), ADAMU & ANOR v. FRN (2019) LPELR – 48775 (SC) PP. 25 – 26, PARA. A, DURWODE v. STATE (2000) LPELR – 973 (SC) PP. 10 – 11, PARAS. A – D and OMOJOLA AKINLOLU v. THE STATE (2017) LPELR – 42670 (SC) PP. 46 – 49, PARAS. F – A. The position of the law is that the trial of an accused person commences on arraignment and taking of his plea in EFFIOM v. STATE (supra) page 582 of the report his lordship Wali, JSC held thus:
“A trial of an accused person commences when his plea is taken, see unreported judgment of the Court in SC.68/1966 delivered on 17th October, 1966. OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 NWLR (PT. 226) 661 and ASAKITIKPI v. THE STATE (1993) 5 NWLR (PT. 296) 652. So the right to fair hearing will commence from the time an accused person is brought before a Court and his plea is taken. The period does not include the pre-trial stage to wit: the period covering the time he was arrested to the time he was arraigned in Court and his plea taken. See, SOFEKUN v. AKINYEMI (1981) 1 NCLR 135.” See, also ADIO v. STATE (1986) (supra).
In TORRI v. NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR – 8142 (SC) PP. 27 – 28, PARAS. F – D his lordship Rhodes – Vivour, JSC in outlining the procedure for a valid arraignment of an accused person held thus:
“An arraignment of an accused person is conducted in accordance with rules and well laid down procedures. The applicable Legislations are Section 187(1) of the Criminal Procedure Code, (applicable in the North) and Section 215 of the Criminal Procedure Act (applicable in the South). Both Legislations have similar provisions.
They are: 1. The accused person shall be brought before the Court unfettered unless the trial judge otherwise directs (e.g. if the accused person becomes violent the judge may order that he be brought before the Court fettered). 2. The charge shall be read and explained to the accused person in the language he understands. 3. The accused person shall then be called upon to plead instantly.”
Further, the three requirements above must co-exist, failure of which would render the trial a nullity. Any criminal trial no matter how well conducted, without the plea of the accused person properly taken is a nullity. It is when an accused person either pleads “guilty” or “not guilty” that issues on the particular charge would be joined in a criminal trial, where plea is not taken, the trial Court would not have the jurisdiction to try the accused person, talkless conviction. The trial Court’s failure to obtain the plea of the Appellant in count one (1) of the charge as clearly shown on the printed records of appeal obviously violated the appellant’s right to be informed of the offence preferred against him to which he would plead “guilty” or “not guilty”, which would be the commencement of the trial, see, ADIO v. STATE (supra). This is in conformity with the provisions Section 36(6) (a) of the 1999 Constitution (as amended) which provides thus:
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.”
See also, KAJUBO v. THE STATE (1988) (supra) at 732, A – C and E – F, EYOROKOROMO v. THE STATE (1979) 6 – 9 SC. 3 and BLESSING v. FRN (2015) 13 NWLR (PT. 1475)1. – PER CHIDI NWAOMA UWA, J.C.A.
EFFECT OF OMISSION OF PLEA TO A CHARGE IN CRIMINAL TRIAL
There is nothing in the proceedings of the trial Court to show that the Appellant pleaded to count one (1) of the charge. It is clear from the records that what the Appellant pleaded to was only count two (2) of the charge. In a multiple charge, each plea must be recorded. The omission of plea in count one (1) cannot be taken as a mere irregularity, it is a fundamental procedural breach that goes to the root of the entire proceedings of the trial Court thus rendering the trial and conviction of the Appellant a nullity as rightly argued by the learned counsel to the Appellant. I cannot but, agree with the submissions. It is after the plea of an accused person that trial commences, on the other hand where an accused person is not called upon to take a plea to a charge the trial on such charge cannot rightly culminate in a conviction and sentence as has happened in the present case. See, ADIO v. STATE (1986) (supra).
Further, once the provisions of Section 187 (1) of the Criminal Procedure Code (C.P.C.) and Section 36 (6) (a) of the Constitution are not followed in a criminal trial, the trial is null and void and all other orders in consequence are of no effect, like they were not made. I hold that the entire proceedings in respect of the Appellant’s trial are a nullity. See, YUSUF v. STATE (2011) 6 – 7 SC (PT. V) P. 190, TORRI v. NATIONAL PARK SERVICE OF NIG. (2011) 6 – 7 SC (PT. III) P. 171, TIMOTHY v. FRN (2012) 6 SC (PT. III) P. 159, MADU v. STATE (2012) 6 SC (PT. 1) P. 80 and MOHAMMED v. STATE (2015) 2 SC (PT. 1) P. 163.
It is clear that the conviction of the appellant on the two count charge irrespective of the fundamental defect in the trial is grossly erroneous and has rendered the entire verdict concerning the Appellant a nullity. As I stated earlier in this judgment, it is a settled principle of law that an appellate Court is bound by the record of appeal which is also binding on the parties and their learned counsel. See, OLUFEAGBA v. ABDULRAHEEM (2009) 12 SCNJ 349 at 383. The conviction of the Appellant on the two count charge breached his right to fair hearing. – PER CHIDI NWAOMA UWA, J.C.A.
THE PRINCIPLE OF FAIR HEARING AS REGARDS PROPER ARRAIGNMENT
The principle of fair hearing is well defined/explained in our Constitution, it is clear and unambiguous. An accused person is presumed innocent until the contrary is proved, the proof must also be following trial and a trial commenced by a valid arraignment. The purported trial of the Appellant was flawed in the absence of proper arraignment. Therefore, the trial being a nullity the appellant’s conviction and sentence with the proceedings having been rendered null and void, the purported commencement of the trial is hereby set aside. See also, IDEMUDIA v. STATE (1999) LPELR – 1418 (SC) P. 34, PARAS. C – E and MOHAMMED v. F.R.N (2018) LPELR – 43908 (SC) P. 35, PARAS. C – F. Where there is no proper arraignment, the trial Court would have no jurisdiction to adjudicate and if it does, it is in violation of the accused person’s right to fair hearing guaranteed by Section 36(6) of the Constitution. See, TIMOTHY v. FRN (2012) 6 SC (PT.III) P. 159, ADEWUNMI v. STATE (2016) 1 – 3 SC (PT. II) P. 123, DAUDA v. FRN (2017) 2 – 3 SC (PT. II) P. 158, MUSA v. STATE (2016) LPELR – 42812 (SC) PP. 27 – 29, PARAS. A – B; 30 – 32, PARAS. E – C, ADAMU v. STATE (2017) LPELR – 41436 (SC) PP. 56 – 57, PARAS. D – A and IBRAHIM v. STATE (2013) LPELR – 21883 (SC) P. 19, PARAS. B – D. I hold that the trial Court did not comply with the mandatory requirements for the proper arraignment of the accused persons, which is unfortunate. – PER CHIDI NWAOMA UWA, J.C.A.
EFFECT OF IMPROPER OR INVALID ARRAIGNMENT IN A CRIMINAL TRIAL
In AMINA MUSA v. THE STATE (2016) LPELR – 42812 (SC) PP. 17 – 12 PARAS. C – E his lordship Ogunbiyi, JSC on the appropriate order to make in such situation as has arisen here held thus:
“…suffice to say that no trial has been conducted in this case at all.
…The justice of this case will require the taking into account several interest groups which are: the accused/appellant, the victim and their family members as well as the security of the society whose perception of what constitutes justice should not be undermined.”
On my part, I would say that justice is for both parties, the accused person and the alleged victims and their families. In YAHAYA v. STATE (2002) 3 NWLR (PT. 754) P. 239 his lordship, Uwais, CJN (as he then was) following the decision in EREKANURE v. STATE (1993) 5 NWLR (PT. 294) 385 his lordship in drawing a distinction between an order of “retrial” and an order for “a fresh trial”, held thus:
“A retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure. Where however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not an order of retrial but of a fresh trial. In the instant case, there has been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial.”
The trial of the appellant was not vitiated on ground of law or irregularity in procedure but, was vitiated from the foundation; therefore the appropriate order would not be an order for retrial. The only way to correct the wrong is an order for a proper trial beginning with a valid arraignment, the initial purported trial having been held to be null and void, therefore no trial at all with no legal effect. This is necessitated by the nature and gravity of the offences charged, Criminal Conspiracy and Attempted Robbery, convicted for Criminal Conspiracy and Armed Robbery. In the circumstances, it would be wrong at this stage to discharge the appellant or exonerate him from the charges without a proper trial. The justice of the case will be better met with an order for a fresh trial of the Appellant. – PER CHIDI NWAOMA UWA, J.C.A
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Taraba State, presided over by J.Y. Tuktur, C.J. (hereafter referred to as the trial Court) delivered on 6th September, 2018 in which the Appellant was the 1st accused person with the 2nd – 4th Respondents who were convicted for Criminal Conspiracy and Armed Robbery contrary to Sections 97(1) and 299(c) of the Penal Code respectively.
The background facts are that on the 17th day of March, 2016, it was alleged that the Appellant with the 2nd – 4th Respondents were arraigned before the Taraba State High Court on a two count charge for the offences of Criminal Conspiracy and Attempted Robbery. It was made out by the Appellant that when he was arraigned a plea of “Not guilty” was recorded in respect of Court two (2) of attempted Robbery but, that there was an omission by the trial Court for his plea to be taken in respect of count one(1) of Criminal Conspiracy, page 42 of the printed records of appeal. It was alleged that the trial Court proceeded with the trial, convicted and sentenced the Appellant to ten (10) years imprisonment with N200,000.00 (Two Hundred Thousand Naira) fine and six (6) months imprisonment in default of the fine, the sentence on both counts were to run consecutively.
Further that in convicting the appellant, the learned trial judge relied heavily on the alleged confessional statement of the Appellant, Exhibits ‘A1’ and ‘B’ with the evidence of the PW1 and PW3 – PW8. In defence, the Appellant testified for himself and denied the allegation against him. The trial Court disbelieved the Appellant’s evidence and convicted him as charged. Aggrieved by the decision, the Appellant appealed to this Court.
The following three (3) issues were formulated for the determination of the appeal thus:
i. “Whether the Appellant’s right to fair hearing was not breached by the trial Court when it proceeded to try and convict the Appellant for the offences of Criminal Conspiracy and Attempted Robbery without taking his plea on Count 1 of the charge. (Distilled from Ground 1 of the Notice and Grounds of Appeal).
ii. Whether the finding of guilt and the conviction of the Appellant for the offence of armed robbery is valid in law considering the charge before the trial Court. (Distilled from Grounds 2 and 3 of the Notice and Grounds of Appeal).
iii. Whether the conviction of the Appellant is justifiable in law having regards to the evidence before the trial Court.” (Distilled from Grounds 4 and 5 of the Notice and Grounds of Appeal).
The 1st Respondent on her part formulated a sole issue for the determination of the appeal thus
“Whether the trial Court was right to have convicted and sentenced the appellant for the offences of criminal conspiracy and attempted robbery punishable under Sections 97(1) and 299 of the Penal Code.” (Distilled from grounds 1, 2, 3, 4 and 5 of the Appellant’s grounds of Appeal).
The 2nd – 4th Respondents did not file any brief of argument and had nothing to urge.
In arguing the appeal, the learned counsel to the Appellant John Okezie Esq. adopted and relied on his brief of argument filed on 4/10/20 but, deemed properly filed and served on 29/10/21, in urging us to allow the appeal. In arguing his issue one, it was submitted that from the records of Court, the appellant was not validly arraigned by the trial Court in respect of count one (1) of the charge for Criminal Conspiracy. It was argued that, there is nothing on record to show or infer that the Appellant took plea to the charge of criminal conspiracy. It was submitted that the trial Court proceeded in error and without jurisdiction in the eye of the law, reference was made to pages 41 and 42 of the printed records of Appeal of 17th day of March, 2016, when the Appellant was said to have been arraigned, reference was made to pages 1–2 and 42 of the printed records of Appeal. It was argued that the Appellant was not afforded the opportunity of pleading to the charge of criminal conspiracy. It was argued that the trial Court ought not to have convicted the Appellant on count two (2) when the Appellant neither pleaded “guilty” nor “not guilty” in count one (1). The learned counsel to the Appellant explained what a valid arraignment is while reference was made to Section 187 (1) of the Criminal Procedure Code (C.P.C.). It was argued that the above provision must be mandatorily complied with; otherwise the entire proceedings would be a nullity. See, UDO v. THE STATE (2006) ALL FWLR (PT. 337) 456, AKILI v. THE STATE (1994) 7 NWLR (PT. 357) 502 at 507 and KAJUBO v. THE STATE (1988) 1 NWLR (PT. 73) 21. It was submitted that on arraignment, explaining the offence to the understanding of the accused person and nothing more is not a valid arraignment. See, SOLOLA v. STATE (2005) ALL FWLR (PT. 269) 1751, AMANCHUKWU v. FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT. 380) 1578, EDIBO v. STATE (2007) ALL FWLR (384) 192, EWE v. THE STATE (1992) 6 NWLR (PT. 246) 147 at 153 and NWAFOR OKEGBU v. STATE (1979) 11 SC. 1. It was argued that failure of the Court to obtain the plea of the Appellant in count one (1) deprived the Appellant of his right to be informed of the offence preferred against him as provided in Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution). See, NWORIE v. A.G. OGUN STATE (2002) 8 NWLR (PT. 770) 559 at 575. It was argued that the trial Court proceeded with the trial and conviction of the Appellant without the plea of the Appellant, which is a grave breach of the Appellant’s right to fair trial which has the effect of rendering the entire trial a nullity. It was stressed that the charge must be read, explained and plea taken for a valid arraignment in law. See, EFFIOM v. STATE (1995) 1 NWLR (PT. 373) 507 at 631, YAWALE SHARFAL v. THE STATE (1992) SC, DUVALL v. COP (1962) 2 ALL NLR (PT. 1) 116 at 177. Further, that from page 42 of the printed records of appeal, the charge was read and each accused person was said to have understood same but, there is no record showing that any of the accused persons pleaded to count one (1) of the charge, it was argued not to be an irregularity but, a fundamental procedural breach. See, ADIO v. STATE (1986) 6 SC 719 where it was held that a criminal proceeding commences with a plea to the charge. See also, DURWODE v. THE STATE (2000) 12 SC (PT. 1) 1 and YAHAYA v. THE STATE (2002) 3 NWLR (PT. 754) 289 at 303. Further, that in compliance with Sections 187 and 188 of the CPC, the record of the trial Court ought to show that the Appellant pleaded to the charge. See, EDE v. THE STATE (1986) 5 NWLR (PT. 42) 530. We were urged to allow the appeal on this issue alone.
In response, the learned counsel to the 1st Respondent Hamidu Audu, learned Director Public Prosecution (DPP) of Taraba State Ministry of Justice adopted and relied on his brief of argument filed on 8/11/21, in urging us to dismiss the appeal and affirm the judgment of the trial Court. The 1st Respondent’s sole issue, is whether the offences for which the Appellant was charged, tried and convicted were proved, argued at page 6 (paragraph 4.1) to page 28 (paragraph 5.0) of the 1st Respondent’s brief of argument, basically on the evaluation of evidence at the trial Court.
The Appellant’s issue one which challenged the validity of the trial and the jurisdiction of the trial Court to have convicted the Appellant was part of the 1st Respondent’s argument under her sole issue argued from page 18 (paragraph 4.35) – Page 22 (paragraph 4.41) of the 1st Respondent’s brief of argument where the learned DPP responded to the Appellant’s issue one (1). It was submitted that for the Appellant to allege that his right to fair hearing was breached by his not taking his plea in count one of the charge is a superficial proposition that lacks potency. It was argued that from the records of appeal, the Appellant pleaded “NOT GUILTY” in count one (1), reference was made to page 42 of the printed records of appeal where the learned prosecuting counsel L.N. Lunar Esq. sought a date to commence the hearing against the background of the plea of the Appellant who was said to have acknowledged understanding the charge and pleading “NOT GUILTY” to same in the following words:
“FOLLOWING THE PLEA OF “NOT GUILTY”, WE SHALL APPLY FOR A DATE”
While reliance was placed on the case of ADENIJI v. THE STATE (2001) 5 SC (PT. 11) 100, it was submitted that each case should be treated on its peculiar facts and that the mode of compliance would differ from case to case, as it is not every requirement that must appear on record. It was re-argued that the plea of the Appellant was correctly taken by the trial Court before the trial commenced as is reflected at pages 42, 43 and 119 of the records of appeal, reference was made to the case of AKPAN v. THE STATE (2002) 12 NWLR (PT. 780) 189 at 202. PARAS. E – F. Further, that at page 119, the omission of “NOT GUILTY” in count one (1) cannot render the trial a nullity because the content of pages 42, 43 and 119 are enough to justify the presumption that there was a valid arraignment of the Appellant. We were urged to presume that there was a valid arraignment of the Appellant.
It was submitted that the Appellant’s right to fair hearing was not breached. It was argued that the Appellant and his counsel were in Court throughout the trial and that lack of fair hearing could not be established from the records at pages 42, 43 and 119 of the records of appeal. It was argued that it is not enough to allege lack of fair hearing for no reason. See, OLUDE v. THE STATE (2018) 10 NWLR (PT. 1627) P. 292 at P. 313, PARAS. C – H and ADEBAYO v. A.G. OGUN STATE (2008) 7 NWLR (PT. 1085) 201 at 221, PARAS. F – G.
In the Appellant’s reply to the 1st Respondent’s argument in her paragraphs 4:35 – 4:41 of her brief of argument, it was submitted that the contention of the 1st Respondent’s counsel that the response of the prosecuting counsel L.N. Lunar Esq., when he sought for an adjournment on record could be substituted for the plea of the Appellant has no place in law. It was argued that the law is that plea of an accused person must be plain, direct and unequivocal and recorded the same way as the plea taken.
I would adopt the issues as formulated and argued by the Appellant in the determination of the appeal.
In resolution of the Appellant’s issue one, whether the Appellant’s right to fair hearing was not breached by the trial Court when it proceeded to try and convicted the appellant for the offences of Criminal Conspiracy and Attempted Robbery without taking his plea on count one (1) of the charge? The proceeding of the trial Court of 17th March, 2016, page 42 of the printed records of Appeal shows the commencement of the trial thus:
“COUNSEL: I apply that the charge be read and interpreted to the accused persons.
COUNT 1:
1st Accused – understood.
2nd Accused – understood.
3rd Accused – understood.
4th Accused – understood.
COUNT II:
1st Accused understood but not guilty.
2nd Accused understood but not guilty.
3rd Accused understood but not guilty.
4th Accused understood but not guilty.
(Sgd.)
Hon. Justice Josephine J. Tuktur
(Chief Judge) 17/3/2016.
Prosecution – Lunar: Following the plea of not guilty. We shall apply for a date.”
From the records reproduced above, learned prosecuting counsel applied that the charge be read and interpreted to the appellant and the 2nd – 4th Respondents, it appears that the charge was read and understood by the Appellant and nothing more in respect of count one (1). There is nothing on record to show that the Appellant (who was the 1st accused) was given the opportunity of pleading to the charge of criminal conspiracy for which he was convicted. On the other hand, in respect of count two (2), it is clear from the record that the Appellant pleaded to the charge of Attempted Robbery. In count one (1), the Appellant neither pleaded “guilty” nor “Not guilty”.
A valid arraignment is the commencement of a criminal trial where the charge would be read and explained to the accused person who would be asked whether he/she is “guilty” or “not guilty” of the offence(s) charged, the accused person would either plead guilty or not guilty. Section 187 (1) of the Criminal Procedure Code (C.P.C.) provides thus:
“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.”
(Underlined mine for emphasis)
Compliance with the above provision is mandatory for a valid arraignment of the Appellant, in the absence of any plea by the Appellant to count one (1) of the charge of Criminal Conspiracy, the trial Court would have wasted precious judicial time as the entire proceeding would be a nullity. Where a charge is not read and explained to an accused person and where no plea is taken as in the present case, the whole trial becomes a nullity. The conditions as laid out by the Supreme Court in UDO v. THE STATE (2006) (supra) are as follows:
1. The accused person must appear before the Court.
2. The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
3. The accused shall be called upon to plead instantly to the charge.
Further, explaining the offence to the understanding of the accused person without plea being taken does not make for a valid plea. The learned counsel to the 1st Respondent had argued that count one (1) of the charge was read and understood by the Appellant and should be taken as a plea, this is erroneous. The plea of an accused person should be clear and on record, the requirements are not directory but, mandatory they must be strictly complied with in all criminal trials. In SUNDAY OFFOR & ANOR v. THE STATE (2012) LPELR – 19658 (SC) PP. 20 – 21, PARA. C, (also, (2012) 18 NWLR (PT. 1333) P. 421 and (2012) 12 SC II P. 21) his lordship Ogunbiyi, JSC on the interpretation of Section 187(1) of the Criminal Procedure Code (C.P.C.) in respect of arraignment and plea of an accused person held thus:
“… Suffice it to say however that by the use of the word shall, in Subsection 187 (1) supra, the following procedure ought to be strictly followed; that is to say that the charge must first be read out and explained to the accused in the open Court, thereafter he shall be asked whether he is guilty or not of the offence or offences charged. …”
(underlined mine for emphasis)
See also, UDO v. THE STATE (2006) (supra), SOLOLA v. STATE (2005) (supra), ADAMU & ANOR v. FRN (2019) LPELR – 48775 (SC) PP. 25 – 26, PARA. A, DURWODE v. STATE (2000) LPELR – 973 (SC) PP. 10 – 11, PARAS. A – D and OMOJOLA AKINLOLU v. THE STATE (2017) LPELR – 42670 (SC) PP. 46 – 49, PARAS. F – A. The position of the law is that the trial of an accused person commences on arraignment and taking of his plea in EFFIOM v. STATE (supra) page 582 of the report his lordship Wali, JSC held thus:
“A trial of an accused person commences when his plea is taken, see unreported judgment of the Court in SC.68/1966 delivered on 17th October, 1966. OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 NWLR (PT. 226) 661 and ASAKITIKPI v. THE STATE (1993) 5 NWLR (PT. 296) 652. So the right to fair hearing will commence from the time an accused person is brought before a Court and his plea is taken. The period does not include the pre-trial stage to wit: the period covering the time he was arrested to the time he was arraigned in Court and his plea taken. See, SOFEKUN v. AKINYEMI (1981) 1 NCLR 135.”
See, also ADIO v. STATE (1986) (supra).
In TORRI v. NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR – 8142 (SC) PP. 27 – 28, PARAS. F – D his lordship Rhodes – Vivour, JSC in outlining the procedure for a valid arraignment of an accused person held thus:
“An arraignment of an accused person is conducted in accordance with rules and well laid down procedures. The applicable Legislations are Section 187(1) of the Criminal Procedure Code, (applicable in the North) and Section 215 of the Criminal Procedure Act (applicable in the South). Both Legislations have similar provisions.
They are: 1. The accused person shall be brought before the Court unfettered unless the trial judge otherwise directs (e.g. if the accused person becomes violent the judge may order that he be brought before the Court fettered). 2. The charge shall be read and explained to the accused person in the language he understands. 3. The accused person shall then be called upon to plead instantly.”
Further, the three requirements above must co-exist, failure of which would render the trial a nullity. Any criminal trial no matter how well conducted, without the plea of the accused person properly taken is a nullity. It is when an accused person either pleads “guilty” or “not guilty” that issues on the particular charge would be joined in a criminal trial, where plea is not taken, the trial Court would not have the jurisdiction to try the accused person, talkless conviction. The trial Court’s failure to obtain the plea of the Appellant in count one (1) of the charge as clearly shown on the printed records of appeal obviously violated the appellant’s right to be informed of the offence preferred against him to which he would plead “guilty” or “not guilty”, which would be the commencement of the trial, see, ADIO v. STATE (supra). This is in conformity with the provisions Section 36(6) (a) of the 1999 Constitution (as amended) which provides thus:
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.”
See also, KAJUBO v. THE STATE (1988) (supra) at 732, A – C and E – F, EYOROKOROMO v. THE STATE (1979) 6 – 9 SC. 3 and BLESSING v. FRN (2015) 13 NWLR (PT. 1475)1.
From the printed records of appeal, no doubt count one of the charge was read, interpreted and understood by the Appellant but, there is nothing to show that he was called upon to plead to the said count one, if he was called upon, it would have been on record. The trial Court was therefore wrong to have proceeded to try and convict the appellant for Criminal Conspiracy and Armed Robbery; it is a breach of the Appellant’s right to a fair trial which has rendered the entire proceedings a nullity. The learned DPP had argued that the Appellant understood the charge in count one (1), understanding the content of the charge is not the same as the Appellant’s pleading “guilty” or “not guilty”. The procedure is that after the charge is read and explained to the accused person to the satisfaction of the Court and he/she understands same, thereafter, the plea must be recorded. EFFIOM v. STATE (1995) (supra). The learned DPP had also argued that plea was taken and recorded as shown in count two but, the law is that where in a criminal trial the charge as in the present case contains more than one count, each count must be read separately to the accused person who will plead separately on each count, the record of proceedings must also reflect that he pleaded separately. As in this case, where it was a joint charge and several accused persons, each count must be read to each accused separately and each must plead separately under each count. The learned DPP had also argued that since the accused understood the charge, that the omission of not recording “NOT GUILTY” under count one (1) cannot render the trial a nullity, that it could be presumed that there was a valid arraignment of the Appellant. The authorities cited and relied upon by the learned DPP are not applicable to the present case, AKPAN v. THE STATE (2002) (supra), OKORO VS. THE STATE (1998) (supra) and these line of cases, the issue was not whether the accused person pleaded or not but, rather whether the charge was read and explained to the 0satisfaction of the Court before plea was taken. The two scenarios are different. The learned DPP also made out that the prosecuting counsel L.N. Lunar Esq. who sought for a date to commence hearing had stated that the Appellant and his co-accused persons had pleaded “not guilty” to the charge, shown by the following words (earlier reproduced in this judgment):
“Following the plea of Not guilty, we shall apply for a date.”
The fact that the learned prosecuting counsel stated that plea had been taken does not mean that the Appellant pleaded to count one (1) of the charge. There is no doubt that count two (2) was pleaded to the trial was a joint trial with two charges, the plea in each count ought to be separated and the records must reflect same. It does not lie in the mouth of the prosecuting counsel to say plea was taken when it is not on record. It was also argued by the learned DPP that at page 119 of the printed records, the trial Court in its judgment recorded thus:
“The five accused persons pleaded not guilty on each of the count, on the 17th Day of March, 2016, as contained in the charge.”
It was submitted that from the above record, the Appellant was properly arraigned and plea taken. This is a Court of record, anything not shown in the records where required cannot be presumed, moreso records do not lie. On the other hand, records speak for themselves. I do not agree with the submission of the learned DPP that every case must be treated on its peculiar facts, that the mode of compliance would differ from case to case and that not every requirement that must appear on record; worse still, in a criminal trial! The parties, counsel and the Court are bound by the records of appeal which is presumed correct until the contrary is proved. The Court cannot go outside its records and draw conclusions and/or make presumptions of what cannot be seen in its records. See, BAMIDELE PATRICK v. THE STATE (2018) LPELR – 43862 (SC) PP. 31 – 32, PARAS. E – B and UCHENDU v. STATE (2020) LPELR – 50216 (CA) P. 10, PARAS. A – E, AGBAREH v. MIMRA (2008) 2 MJSC 134, OGUNTAYO v. ADELAJA (2009) 15 NWLR (PT. 1163) 150 and SABASTINE v. STATE (2020) LPELR – 50319 (CA) PP. 10 -11, PARAS. C – A. Nobody can read into the records what is not there. There is nothing in the proceedings of the trial Court to show that the Appellant pleaded to count one (1) of the charge. It is clear from the records that what the Appellant pleaded to was only count two (2) of the charge. In a multiple charge, each plea must be recorded. The omission of plea in count one (1) cannot be taken as a mere irregularity, it is a fundamental procedural breach that goes to the root of the entire proceedings of the trial Court thus rendering the trial and conviction of the Appellant a nullity as rightly argued by the learned counsel to the Appellant. I cannot but, agree with the submissions. It is after the plea of an accused person that trial commences, on the other hand where an accused person is not called upon to take a plea to a charge the trial on such charge cannot rightly culminate in a conviction and sentence as has happened in the present case. See, ADIO v. STATE (1986) (supra).
Further, once the provisions of Section 187 (1) of the Criminal Procedure Code (C.P.C.) and Section 36 (6) (a) of the Constitution are not followed in a criminal trial, the trial is null and void and all other orders in consequence are of no effect, like they were not made. I hold that the entire proceedings in respect of the Appellant’s trial are a nullity. See, YUSUF v. STATE (2011) 6 – 7 SC (PT. V) P. 190, TORRI v. NATIONAL PARK SERVICE OF NIG. (2011) 6 – 7 SC (PT. III) P. 171, TIMOTHY v. FRN (2012) 6 SC (PT. III) P. 159, MADU v. STATE (2012) 6 SC (PT. 1) P. 80 and MOHAMMED v. STATE (2015) 2 SC (PT. 1) P. 163.
It is clear that the conviction of the appellant on the two count charge irrespective of the fundamental defect in the trial is grossly erroneous and has rendered the entire verdict concerning the Appellant a nullity. As I stated earlier in this judgment, it is a settled principle of law that an appellate Court is bound by the record of appeal which is also binding on the parties and their learned counsel. See, OLUFEAGBA v. ABDULRAHEEM (2009) 12 SCNJ 349 at 383. The conviction of the Appellant on the two count charge breached his right to fair hearing. The principle of fair hearing is well defined/explained in our Constitution, it is clear and unambiguous. An accused person is presumed innocent until the contrary is proved, the proof must also be following trial and a trial commenced by a valid arraignment. The purported trial of the Appellant was flawed in the absence of proper arraignment. Therefore, the trial being a nullity the appellant’s conviction and sentence with the proceedings having been rendered null and void, the purported commencement of the trial is hereby set aside. See also, IDEMUDIA v. STATE (1999) LPELR – 1418 (SC) P. 34, PARAS. C – E and MOHAMMED v. F.R.N (2018) LPELR – 43908 (SC) P. 35, PARAS. C – F. Where there is no proper arraignment, the trial Court would have no jurisdiction to adjudicate and if it does, it is in violation of the accused person’s right to fair hearing guaranteed by Section 36(6) of the Constitution. See, TIMOTHY v. FRN (2012) 6 SC (PT.III) P. 159, ADEWUNMI v. STATE (2016) 1 – 3 SC (PT. II) P. 123, DAUDA v. FRN (2017) 2 – 3 SC (PT. II) P. 158, MUSA v. STATE (2016) LPELR – 42812 (SC) PP. 27 – 29, PARAS. A – B; 30 – 32, PARAS. E – C, ADAMU v. STATE (2017) LPELR – 41436 (SC) PP. 56 – 57, PARAS. D – A and IBRAHIM v. STATE (2013) LPELR – 21883 (SC) P. 19, PARAS. B – D. I hold that the trial Court did not comply with the mandatory requirements for the proper arraignment of the accused persons, which is unfortunate.
The next question is: what is the appropriate order to make in the circumstances? In AMINA MUSA v. THE STATE (2016) LPELR – 42812 (SC) PP. 17 – 12 PARAS. C – E his lordship Ogunbiyi, JSC on the appropriate order to make in such situation as has arisen here held thus:
“…suffice to say that no trial has been conducted in this case at all.
…The justice of this case will require the taking into account several interest groups which are: the accused/appellant, the victim and their family members as well as the security of the society whose perception of what constitutes justice should not be undermined.”
On my part, I would say that justice is for both parties, the accused person and the alleged victims and their families. In YAHAYA v. STATE (2002) 3 NWLR (PT. 754) P. 239 his lordship, Uwais, CJN (as he then was) following the decision in EREKANURE v. STATE (1993) 5 NWLR (PT. 294) 385 his lordship in drawing a distinction between an order of “retrial” and an order for “a fresh trial”, held thus:
“A retrial is ordered only when there has in fact been a previous trial that was properly conducted, but which is vitiated by reason of an error in law or procedure. Where however, there has been no trial in the sense that the purported trial has been vitiated ab initio and is therefore null and void, the proper order to make is not an order of retrial but of a fresh trial. In the instant case, there has been no trial because the purported trial whatsoever was vitiated ab initio. Therefore, the order to be made is for a proper trial to take place and not a retrial.”
The trial of the appellant was not vitiated on ground of law or irregularity in procedure but, was vitiated from the foundation; therefore the appropriate order would not be an order for retrial. The only way to correct the wrong is an order for a proper trial beginning with a valid arraignment, the initial purported trial having been held to be null and void, therefore no trial at all with no legal effect. This is necessitated by the nature and gravity of the offences charged, Criminal Conspiracy and Attempted Robbery, convicted for Criminal Conspiracy and Armed Robbery. In the circumstances, it would be wrong at this stage to discharge the appellant or exonerate him from the charges without a proper trial. The justice of the case will be better met with an order for a fresh trial of the Appellant. See also, IMAM v. F.R.N. (2019) LPELR – 49468 (SC) PP 15 – 17, PARAS. D – A and EDIBO v. STATE (2007) LPELR – 1012 (SC) PP. 16 – 17, PARA. A. From all that I have said, I resolve issue one in favour of the Appellant.
With the resolution of the Appellant’s issue one (1) in his favour, there would be no need to look into issues two and three having held under issue one (1) that there was no trial. Resolving issues two and three would be a waste of precious judicial time as it would not affect the final appropriate order of fresh trial and its outcome.
I hold that the appeal is meritorious and is allowed on the Appellant’s issue one alone. The judgment of the trial Court delivered on 6th September, 2018 in charge No. TRSJ/10C/16 in respect of the appellant is hereby set aside.
In consequence, I remit charge No. TRSJ/10C/16 in respect of the Appellant to the Chief Judge of Taraba State for assignment for a fresh trial by a judge of the High Court of Taraba State. Considering the nature of the charge, the trial should be given accelerated hearing.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother CHIDI NWAOMA UWA, JCA afforded me the privilege of reading the draft judgment just delivered. I agree entirely with the decision my learned brother arrived at with nothing further to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Chidi Nwaoma Uwa, JCA in the matter. I entirely agree with the conclusion that the appeal is meritorious. The charge No. TRSJ/10C/2016 should be assign to another judge for fresh trial.
Appearances:
John Okezie, Esq., with him, Peter E. Ibe, Esq. and I. I. Daniel For Appellant(s)
Hamidu Audu (Director of Public Prosecution, Taraba State Ministry of Justice) with him, D. D. Shintema, Senior State Counsel – for 1st Respondent
2nd – 4th Respondents were not in Court and not represented despite service. For Respondent(s)
