CHRISTOPHER TOBI OKOLIE V. THE STATE
(2011)LCN/4281(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of February, 2011
CA/L/385/07
RATIO
PLEA OF THE ACCUSED: WHETHER THE PLEA OF THE ACCUSED MUST BE RECORDED EXACTLY IN THE ACCUSED’S OWN WORDS AFTER READING AND EXPLAINING THE CHARGE TO HIM
The appellant’s plea is so important that it cannot be reduced to mere story-telling. The plea must be recorded exactly in the accused’s own words after reading and explaining the charge to him. PER HUSSEIN MUKHTAR, J.C.A.
VALID ARRAIGNMENT OF AN ACCUSED: THE ESSENTIAL REQUIREMENTS MUST BE SATISFIED WITH FOR THERE TO BE A VALID ARRAIGNMENT
The Supreme court in Ogunye v State (1999) 5 NWLR (pt 604) 548 at 565 paras A – E per Iguh, JSC captured the requirements of a valid arraignment in court as follows: “For there to be a valid arraignment of an accused person, the following three essential requirements must be satisfied to wit: a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order: b) The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and c) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith. The above stated requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. Since these requirements have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial incurably defective and null and void.” See also Kujubo v State (1988) 1 NWLR (pt. 73) 721;Erekunare v State (1993) NWLR (pt.294) 385; Kalu v State (1998) 13 NWLR (Pt. s83) 531; Okoro v State (1998) 14 NWLR (pt. 584) 186. PER HUSSEIN MUKHTAR, J.C.A.
EFFECT OF NON-COMPLIANCE WITH THE PROVISIONS OF SECTIONS 36(6) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AND 215 OF THE CRIMINAL PROCEDURE LAW, CAP C 18 LAWS OF LAGOS STATE ON A TRIAL PROCEEDINGS
The failure by the court below to record the accused person’s plea renders the procedure inconsistent with section 36(6)(a) and (b) of the 1999 Constitution and section 215 of the CPL. In Idemudia v State (1999) 7 NWLR (Pt.610) 202, the Supreme Court per Karibi-Whyte, JSC at p.221 paras A – C observed thus: “An arraignment consists of charging the accused or reading over the charge to him and taking his plea thereon. A valid arraignment therefore presupposes compliance with the enabling constitutional and procedural provisions and a strict compliance therewith is demanded by the court.” It is not enough as the record shows that the charge was read to the accused and he pleaded not guilty. It is a critical and fundamental procedure that lays the very foundation of a valid criminal trial. Unless the charge is adequately read and explained to the accused person to his understanding in a language he fluently understands and his plea specifically recorded, the arraignment procedure will be rendered a complete nullity and the same virus runs through the entire trial proceedings. In Idemudia v State (supra) the Supreme Court aptly stated at page 221 paras C-D, as follows: “Where a trial judge simply directs the registrar of the court to take the plea of the accused person without more, this does not comply with the procedure laid down by law. Similarly where the record of proceedings simply shows: plea: “Accused – Not guilty”, such a practice does not comply with the requirements of reading and explaining the charge to the accused.” The procedure of arraignment under section 215 of the CPL must be followed religiously as it borders on the accused’s fundamental right to fair hearing under section 36(6) (a) and (b) of the 1999 Constitution. The accused person must be brought to court, the charge then read and explained to him. He is then asked to plead to the charge. The plea to the charge is then recorded. Where for instance he says “I am not guilty” such plea must be specifically recorded verbatim. In fact it beats one’s imagination why the simple procedure under section 215 of the CPL, cannot be complied with. What the court below recorded at pages 30 to 31 of the record of appeal has fallen short of compliance with section 215 of the CPL and renders the proceedings null and void. PER HUSSEIN MUKHTAR, J.C.A.
RECORD OF PROCEEDINGS : CONSEQUENCE OF THE FAILURE TO SIGN THE RECORD OF PROCEEDINGS FOR THE ACCUSED’S ARRAIGNMENT
It has not been indicated if the record was ever signed by the learned trial judge. In fact the name of the presiding judge is not even on the record much less an indication that it was signed. While the actual signature is on the original record, the certified copy must indicate that it was signed and the name of the judge who signed must be stated. Failure to sign the record of the day of arraignment renders that portion of the record of proceedings void. The record of proceedings for the accused’s arraignment at pages 29-35 which is null and void is hereby struck out. PER HUSSEIN MUKHTAR, J.C.A.
ORDER OF THE COURT: PROPER ORDER TO BE MADE WHERE THERE WAS NO ARRAIGNMENT
The appellant’s counsel argued that the proper order to make in circumstances, since there was no arraignment was to acquit the appellant. In the case of Ihekwoba v State (2004) 15 NWLR (Pt. 896) 296 at page 313 para E my learned brother Adekeye, JCA (as he then was) observed thus: “Generally, where a trial is voided by a mistake of law, an order of retrial is the proper order.” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
CLARA BATA OGBUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER TOBI OKOLIE Appellant(s)
AND
THE STATE Respondent(s)
HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment): The appellant has, by this appeal, challenged his conviction and sentence to death, under section 319 of the Criminal Code of Lagos State, in the judgment delivered by the High Court of Lagos State (the court below) on the 31st March, 2006 by Oyebanji, J.
The appellant was charged with the murder of one Femi Osidele on the 9th June, 2000 at Ikotun in Lagos State.
The prosecution produced Mrs. Mobolaji Abiodun Suberu the aunt and guardian of the deceased as the sole prosecution witness at the trial (P.W.1.), out of the five witnesses listed in the proof of evidence (see page 4 of the record of appeal).
The defence made a no case submission which was dismissed, after which the appellant testified as the sole witness for the defence (D.W.1).
In a well considered judgment dated 31st March, 2006 delivered by the court below, the learned trial judge found that there was sufficient circumstantial evidence to warrant the conviction of the appellant. The lower court held that prosecution has proved the case beyond reasonable doubt and found the appellant guilty of the offence of murder contrary to section 31 of the Criminal Code. The appellant was sentenced to death. (Pages 109 – 122 of the record)
The appellant being dissatisfied filed a notice of appeal against that judgment dated and filed on the 19th June 2006 on the following three grounds:
“1. The learned trial judge erred by upholding the evidence of the prosecution, when they failed to prove the case beyond all reasonable doubt.
2. The trial judge erred in law by convicting and sentenced the appellant without any investigation of the evidence before the court.
3. The trial judge erred in law by convicting and sentencing the appellant based on hearsay evidence.
This original notice was amended with leave of that court by an amended notice of appear dated 4th April 2004 and filed on 7th April, 2009 but deemed filed and served on the 25th June, 2008, which contains nineteen grounds as follows:
“1. The trial judge erred in law when he shifted the onus of proof in a criminal case to the accused person, which led to a miscarriage of justice.
2. The learned trial judge erred in law when he admitted and relied on the hearsay evidence of PW1 in convicting the appellant.
3. The learned trial judge erred in law when he held that the prosecution has proved its case beyond reasonable doubt.
4. The learned trial judge erred in law when he relied solely on circumstantial evidence and the evidence of PW1 in convicting the appellant which evidence was neither direct, cogent, nor conclusive.
5. The learned judge erred in law when he did not consider other probable circumstances in which the deceased might have been injured, leading to his death.
6. The learned trial judge erred in law when he convicted and sentenced the appellant to death without considering the material contradictions in the evidence of PW1 as sufficient to disbelieve her evidence.
7. The learned trial judge erred in law when he failed to consider and evaluate the testimony of the appellant, but accepted wholly the testimony of the sole witness for the prosecution.
8. The learned trial judge erred in law when he failed to consider the possible defences open to the appellant before convicting him.
9. The learned trial judge erred in law when he failed to consider, evaluate and make clear finding on the defence raised by the appellant.
10. The learned trial judge erred in law when he relied heavily on the evidence of PW1 without caution or corroboration.
11. The learned trial judge erred in law when he relied on the hearsay evidence of PW1 to convict the appellant.
12. The learned trial judge erred in law when he convicted and sentenced the appellant to death without considering evidence showing he was under the age of 17 years at the time the crime was committed.
13. The learned trial judge erred in law when he failed to give the appellant opportunity to lead evidence to show that he should not be sentenced to death, and proceeded to impose mandatory death sentence on the appellant, which thereby led to miscarriage of justice.
14. The learned trial judge erred in law when he applied the statutory provisions for the imposition of the mandatory death sentence under section 319 of the Criminal Code Law of Lagos State under which the appellant was charged, convicted and sentenced, which provision is contrary to the provision of the 1999 Constitution and international legal norms.
15. The learned trial judge erred in law in relying on section 319 of the criminal code Law of Lagos State in sentencing the appellant to death, when that provision to the extent that it provides for mandatory sentence of death and excludes the opportunity of the appellant to lead evidence to mitigate sentence, is arbitrary and a contravention of the 1999 Constitution and the judicial discretionary function of sentence.
16. The judgment of the trial court condemning the appellant to death occasioned a miscarriage of justice as the judgment was unreasonable and cannot be supported having regards to the evidence in this case.
17. The learned trial judge erred by upholding the evidence of the prosecution, when they failed to prove the case beyond all reasonable doubt.
18. The learned trial judge erred in law by convicting and sentenced the appellant without any investigation of the evidence before the court.
19. The learned trial judge erred in law by convicting and sentencing the appellant based on hearsay evidence'”
Eight issues were distilled for determination by the appellant as follows:
“1. Whether, after expunging the hearsay evidence of PW1, there still remains any other evidence capable of sustaining the conviction of the appellant.
2. Whether the trial judge was right when she shifted the burden of proof to the appellant, and if she was wrong, whether the error resulted in miscarriage of justice against the appellant.
3. Whether the prosecution has proved beyond reasonable doubt that the appellant was responsible for the death of the deceased.
4. Whether the conviction of the appellant is justified on the level of circumstantial evidence adduced in this case.
5. Whether the contradiction in the evidence of the prosecutions witness did not cast doubt on the guilt of the appellant.
6. Whether the learned trial judge was wrong in failing to consider all the defence open to the appellant, including the defence he raised in his testimony in court and in his earlier statement to the Police.
7. Whether the failure of the learned trial judge to investigate the age of the appellant before sentencing him to death, and the sentence of death passed on the appellant by the trial court was not unlawful, in view of the fact that the appellant was under the age of 17 years at the time the offence was committed.
8. Whether section 319 of the Criminal Code Laws of Lagos state 1994, to the extent that it prescribes mandatory sentence of death on anyone convicted of murder, is contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999, the African charter on Human and People’s Rights on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990, and international treaties that Nigeria has ratified.”
The respondent however trimmed down the above issues to the following six issues.
“1. Whether after expunging the hearsay evidence of PW1 there still remains any other evidence capable of sustaining the conviction of the appellant.
2. Whether from the totality of the evidence before the court, the learned trial judge eared in concluding that the prosecution had discharged the burden of proof placed on at by law.
3. Whether the contradiction in the evidence of the prosecution witness did not cast doubt on the guilt of the appellant.
4. Whether the learned trial judge was wrong in failing to consider all the defence open to the appellant including the defence he raised in this evidence in court.
5. Whether the age of the appellant was ever an issue for consideration at the trial court.
6. Whether section 319 of the Criminal Code Laws of Lagos State 2003 to the extent that it prescribes mandatory sentence of death on anyone convicted of murder is contrary to the provisions of the constitution of the Federal Republic of Nigeria 1999, the African Charter on Human and Peoples Rights Ratification and Enforcement Act Cap. 10 laws of the Federation 1990 and International Treaties Nigeria were ratified.”
After hearing the appeal and reserving judgment, the court suo motu raised the following two issues for further address
“1. Whether the proceedings conducted on the 20th of February, 2003, as contained on pages 29-35 of the record complied with provisions of sections 36(6) of the Constitution of the Federal Republic of Nigeria 1999 and 215 of the Criminal Procedure Law of Lagos State.
2. The effect (if any) of non-signing of the proceedings of that day by learned trial judge.”
On the 12th November, 2010 the date fixed for the further address, the appellant’s counsel was in court while the respondent’s was not despite adequate proof of hearing notice served on them. The appellant’s counsel therefore addressed the court in respect of the two issues raised.
On the first issue the appellant’s counsel observed that the arraignment procedure of the appellant before the lower court did not comply with the provision of section 36(6) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as “the 1999 Constitution”) and section 215 of the Criminal Procedure Law, Cap C 18 Laws of Lagos State (hereinafter referred to as “the CPL”)
Section 36(6) (a) and (b) of the 1999 Constitution provides thus:
‘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;
b) Be given adequate time and facilities for the preparation of his defence.”
Upon arraignment of an accused person in court, he must be informed promptly of the nature of the offence in a language he understands. Section 215 of the CPL 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 a person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”
The first step to take upon arraignment is to read the charge to the accused person and take his plea. In this case the law was clearly observed in the breach.
It is pertinent to reproduce the record of commencement of proceedings, upon the arraignment of the appellant before the lower court on the 20th February, 2003.
“Accused produced:
Appearance: Mrs. O.A. Omotimirin for the State Mr. Tony Adeniyi with him is Mr. E.F. Ilori for the accused/applicant.
Mr. Adeniyi: We have an application for bail before the court; the respondent has filed a counter affidavit and we have been served.
Court: Though there is a counter affidavit filed, the summons for bail is not before the court.
Mr. Adeniyi: We were not told about that otherwise we will have taken steps to regularize our position.
Court: The counsel for the accused is appearing in this court for the first time so when could he have been told.
Mr. Adeniyi: From the endorsement in my file Mr. I. George appeared for the accused on 26th November 2002.
Court: On that date, there was no representation for the accused.
Mr. Adeniyi: I apologize, I ask for short adjournment preferably next week.
Mrs. Omotimirin: I am opposed that application; the accused is coming before this court for the first time. I ask that his plea be taken.
Court: Is the State counsel comfortable with the charge before the court.
Mrs. Omotimirin: I have observed that there are two defects on the charge sheet. The first is that the subsection of the criminal code for the offence is not stated. The section should be 319(1) of the criminal code not just section 319.
Secondly, there is a typographical error the stabbing was erroneously stated as stabburing. Furthermore, the word “with’ was omitted, that sentence should read “stabbing him with a knife.” I ask for an oral amendment to reflect all these.
Mr. Adeniyi: No objection.
PLEA
The charge was read to the accused in English Language. The accused says he understands the charge and pleas not guilty to the one count charge.”
The above record shows beyond doubt that the proceedings did not commence with reading and explaining the charge to the appellant and taking his plea which must be recorded in the words uttered by the appellant. The appellant was not recorded at all much less his utterance showing he understood the charge and his plea to it.
Although the lower court might be satisfied that the charge was read over to the appellant and he understood it, his plea ought to have been recorded in the words used by him. The appellant’s plea is so important that it cannot be reduced to mere story-telling. The plea must be recorded exactly in the accused’s own words after reading and explaining the charge to him.
The Supreme court in Ogunye v State (1999) 5 NWLR (pt 604) 548 at 565 paras A – E per Iguh, JSC captured the requirements of a valid arraignment in court as follows:
“For there to be a valid arraignment of an accused person, the following three essential requirements must be satisfied to wit:
a) The accused must be placed before the court unfettered unless the court shall see cause otherwise to order:
b) The charge or information must be read over and explained to the accused to the satisfaction of the court by the registrar or other officer of the court; and
c) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the court is satisfied that he has in fact not been duly served therewith.
The above stated requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. Since these requirements have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial incurably defective and null and void.”
See also Kujubo v State (1988) 1 NWLR (pt. 73) 721;Erekunare v State (1993) NWLR (pt.294) 385; Kalu v State (1998) 13 NWLR (Pt. s83) 531; Okoro v State (1998) 14 NWLR (pt. 584) 186.
The proceedings before the lower court have not shown the appellant’s plea. It is not even clear who made the statement captioned “plea” which reads thus:
PLEA
The charge was read to the accused in English Language. The accused says he understands the charge and pleas not guilty to the one count charge.”
The failure by the court below to record the accused person’s plea renders the procedure inconsistent with section 36(6)(a) and (b) of the 1999 Constitution and section 215 of the CPL. In Idemudia v State (1999) 7 NWLR (Pt.610) 202, the Supreme Court per Karibi-Whyte, JSC at p.221 paras A – C observed thus:
“An arraignment consists of charging the accused or reading over the charge to him and taking his plea thereon. A valid arraignment therefore presupposes compliance with the enabling constitutional and procedural provisions and a strict compliance therewith is demanded by the court.”
It is not enough as the record shows that the charge was read to the accused and he pleaded not guilty. It is a critical and fundamental procedure that lays the very foundation of a valid criminal trial. Unless the charge is adequately read and explained to the accused person to his understanding in a language he fluently understands and his plea specifically recorded, the arraignment procedure will be rendered a complete nullity and the same virus runs through the entire trial proceedings. In Idemudia v State (supra) the Supreme Court aptly stated at page 221 paras C-D, as follows:
“Where a trial judge simply directs the registrar of the court to take the plea of the accused person without more, this does not comply with the procedure laid down by law. Similarly where the record of proceedings simply shows: plea: “Accused – Not guilty”, such a practice does not comply with the requirements of reading and explaining the charge to the accused.”
The procedure of arraignment under section 215 of the CPL must be followed religiously as it borders on the accused’s fundamental right to fair hearing under section 36(6) (a) and (b) of the 1999 Constitution. The accused person must be brought to court, the charge then read and explained to him. He is then asked to plead to the charge. The plea to the charge is then recorded. Where for instance he says “I am not guilty” such plea must be specifically recorded verbatim.
In fact it beats one’s imagination why the simple procedure under section 215 of the CPL, cannot be complied with. What the court below recorded at pages 30 to 31 of the record of appeal has fallen short of compliance with section 215 of the CPL and renders the proceedings null and void. The first new issue is resolved in favour of the appellant.
It is also submitted by the appellant’s counsel, on the second issue, that the none signing of the record of that day on which the appellant was arraigned is fundamental and renders the record a nullity. It is pertinent that record of appeal is presumed to be correct and accurate unless otherwise deposed in an affidavit. The learned trial judge ought to have signed the record of proceedings for the day and the certified record must indicate that it was signed by the learned trial judge. The record for the day ended (at page 35 of the record) thus:
“The accused shall be further remanded in prison custody. The case is adjourned to 1st April, 2003 for continuation of trial.”
It has not been indicated if the record was ever signed by the learned trial judge. In fact the name of the presiding judge is not even on the record much less an indication that it was signed. While the actual signature is on the original record, the certified copy must indicate that it was signed and the name of the judge who signed must be stated. Failure to sign the record of the day of arraignment renders that portion of the record of proceedings void. The record of proceedings for the accused’s arraignment at pages 29-35 which is null and void is hereby struck out.
The appellant’s counsel argued that the proper order to make in circumstances, since there was no arraignment was to acquit the appellant. In the case of Ihekwoba v State (2004) 15 NWLR (Pt. 896) 296 at page 313 para E my learned brother Adekeye, JCA (as he then was) observed thus:
“Generally, where a trial is voided by a mistake of law, an order of retrial is the proper order.”
The factors voiding the arraignment of the appellant and consequently the trial proceedings are premised on mistake or misapplication of law and the proper order to make in the circumstances is that of retrial and not acquittal.
Both issues are resolved in favour of the appellant. The arraignment and trial being null and void, the issues raised for determination by both counsel have effectively been reduced to mere academic questions. The court will not delve in to such moot exercise. The appeal succeeds on both issues raised by the court suo motu and argued by the appellant’s counsel. The null judgment entered by the lower court on 31st March, 2006 by Honourable Justice A. A. Oyebanji is hereby set aside. The conviction and sentence are accordingly quashed. It is hereby ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment of the case to another judge of that court for a fresh trial de novo.
CLARA BATA OGUNBIYI, J.C.A: I have read in draft the lead judgment by my brother Hussein Mukhtar JCA and I agree that the appeal has merit and should succeed. The procedure adopted by the learned trial judge is completely alien to our judicial system. In other words there is no room for a judge who did not take evidence to adopt that previously taken by another judge. The judge to whom the case was subsequently assigned owed it a duty to hear the entire case denovo. My learned brother has in the lead judgment dealt comprehensively with the appeal. I therefore endorse the reasoning and the conclusion arrived thereat and also make an order that the case be remitted to the trial court for trial de novo.
ADZIRA GANA MSHELIA, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother Mukhtar, JCA just delivered. I agree with the reasoning and conclusion arrived thereat. A valid arraignment presupposes compliance with the enabling constitutional and procedural provisions and a strict compliance therewith is demanded by the court. Unless the charge is adequately read and explained to the accused person to his understanding in a language he fluently understands and his plea specifically recorded, the arraignment procedure will be rendered a complete nullity.
In the instant case I agree with my learned brother that the procedure of arraignment under S.215 of the Criminal Procedure Law of Lagos State was not strictly complied with. Appeal is allowed on the issues raised by the court suo motu and argued by appellant’s counsel. I too set aside the judgment of the lower court delivered on 31st March, 2006 by Oyebanji J. I also quash the conviction and sentence and remit the case back to the Honourable Chief Judge Lagos State for re-assignment to another Judge of that Court for a fresh trial.
Appearances
Chinonye Obiagwu;For Appellant
AND
Respondent not represented but duly served with hearing notice on the 9th November 2010For Respondent
