EHIMEN ESENE vs. THE STATE

EHIMEN ESENE vs. THE STATE

(2017) LCN/4542(SC)

In the Supreme Court of Nigeria

Friday, March 10, 2017


Case Number: CA. 322/2013

 

JUSTICES:

OLABODE RHODES-VIVOUR

MUSA DATTIJO MUHAMMAD

CLARA BATA OGUNBIYI

CHIMA CENTUS NWEZE

AMIRU SANUSI

 

APPELLANTS

EHIMEN ESENE

RESPONDENTS

 

RATIO

WHAT MAKES A VALID ARRAIGNMENT

For there to be a valid arraignment of the accused person, the following conditions, contained  in section 215 (supra) must be satisfied: 1.    the accused person shall be placed before the court unfettered unless the court is satisfied that for safety concerns be should be fettered; 2.    the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the court by the registrar or any other officer of court; 3.    the accused person shall then be called upon to plead to each charge; 4.    the plea of the accused person shall be instantly recorded.

 

 

FAILURE TO MEET THE STANDARD ARRAIGNMENT

Failure to comply with any of the above renders the whole trial a nullity. See   Luladeju v Johnson (2007) ALL FWLR (Pt371) p.1532 Timothy v FRN(2012)6SC(Pt.III)p.l59 Madu v State (2012)6SC(Pt I)p.80

THE STATE JUDGMENT (Delivered by Olabode Rhodes-Vivour, JSC) This is an appeal from the decision of the Court of Appeal, Jos Division delivered on 23 May, 2014   which affirmed the conviction and sentence of the appellant by a Jos Federal High Court. The appellant was convicted by the trial court and j sentenced to various terms of imprisonment for offences under section 518 (5) of the Criminal Code, Sections 5(1) and 27 (1) of the Firearms Act and I   section 15 (2) of the Economic and Financial Crimes Commission  Act, 2004. Dissatisfied with the judgment of the trial court, the appellant filed an appeal before the Court of appeal Jos Division.    That court affirmed the decision of the trial court. Still not satisfied with the conviction by the trial court, affirmed by the Court of Appeal the appellant has appealed to this court on one ground of appeal from which he formulated a sole issue for determination of this appeal. The sole issue reads; Whether from the records of proceedings there was a proper arraignment of the appellant before his trial, conviction and sentenced by the trial court. Learned counsel for the respondent adopted the sole issue formulated by the appellant. The sole issue formulated by the appellant s learned counsel shall be considered in resolving, this appeal. At the hearing of the appeal on 15 December 2016 learned counsel for the appellant, R. George esq, adopted the appellant s brief filed on 25/8/l4 and urged the court to allow the appeal, while learned counsel for the respondent C. Ihua-Maduenyi esq, adopted the respondent s brief filed on 8/9/14 and urged the court to dismiss the appeal and affirm concurrent findings. Learned counsel for the appellant observed that the appellant, as one of the accused persons was not properly arraigned before the trial court, contending that the charge was not sufficiently read and explained to him in the language he understands to the satisfaction of the court. He further observed that the appellant s plea to the charge was not recorded as provided by the law. He submitted that where there is non-compliance with requirements for valid arraignment the trial is a nullity. Reliance was placed on Yerima v State (2010)14NWLR (Pt.l231) p.25 Okli v State (2012)1NWLR (Pt.l281) p.385  Kayode v State (2008)1NWLR (Pt. I068) p.28l   PAGE| 3 Concluding he submitted that the effect of failing to comply with section 187 (1) of the Criminal Procedure Code and Section 215 of the Criminal Procedure Act renders the entire proceedings a nullity. He urged this court to allow the appeal and set aside the conviction and sentence of the appellant. On his part learned counsel for the respondent observed that there was compliance with section 215 on the Criminal Procedure Act when the appellant was arraigned and took his plea on 15 June 2010. Reference was made to pages 67-68 of the Record of Appeal. Reliance was placed on Lufadeiu v Johnson (2007) ALL FWLR (Pt371) p.1532 Erekanure v State (1993) 5NWLR (pt.294) p.385 Concluding, he submitted that the appeal is devoid of merit and should be dismissed. In this appeal the appellant is satisfied with the judgment of the trial court delivered on 16 December, 2010 and affirmed by the Court of j Appeal on 23 May, 2014. The ONLY complaint of the appellant is arraignment in the trial court was fundamentally flawed, thereby rendering  the whole trial a nullity and so entitling him to an acquittal. Indeed once an arraignment of an accused person fails to comply with section 215 of the Criminal procedure Act, the trial which follows, no matter how well conducted and decided is a nullity.  It is therefore fundamental that the trial judge ensures that he complies strictly with the provisions of section 215 of the Criminal Procedure Act when an accused person is arraigned before him to take his plea, and the judge must may be correct recordings to show that there was compliance. Section 36 (6) of the Constitution states that:   “Every person who is charged  with a criminal offence shall he entitled to- (a)    be informed promptly in the language that he  understands and in details of the nature of the offence.” Section 215 of the Criminal Procedure Act provides that: “The person to be tried upon any charge or   information shall be placed before the court unfettered unless the court shall see cause otherwise  to order, and the charge or information shall be read  over and explained to him to the satisfaction of the  court by the registrar or other officer of the court and such person shall be called upon to plead instantly PAGE| 4  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 For there to be a valid arraignment of the accused person, the following conditions, contained  in section 215 (supra) must be satisfied: 1.    the accused person shall be placed before the court unfettered unless the court is satisfied that for safety concerns be should be fettered; 2.    the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the court by the registrar or any other officer of court; 3.    the accused person shall then be called upon to plead to each charge; 4.    the plea of the accused person shall be instantly recorded. Failure to comply with any of the above renders the whole trial a nullity. See   Luladeju v Johnson (2007) ALL FWLR (Pt371) p.1532 Timothy v FRN(2012)6SC(Pt.III)p.l59 Madu v State (2012)6SC(Pt I)p.80 I shall now reproduce relevant extracts from the Record of’ Appeal to see if there was compliance with the provisions of section 215 of the Criminal Procedure Act, when the appellant was arraigned before a Jos Federal High Court on 15 June, 2010. The record of proceedings for 15 June 2010 runs as follows: ” All the accused person are present. Ihua-Maduenyi C.U. AS. Garba — appearing with A Arninu for all the accused persons. Ihua-Maduenyi – This matter is coming up for the 1st PAGE| 5 time; we humbly apply that the accused be allowed to take their plea. All the accused persons indicate that they do not  understand English Mr. Peter Sani is called interpreter on Oath  Plea – Charge is read to all the accused persons in  English language and translated by the interpreter from English to Hausa language. To Count 1 all the accused persons acknowledge that they understand the charge and plead not guilty to the charge. To Count II the 1st,3rd ,5th ,8th, 11th, 13th and 14tth accused acknowledge that they understand the charge and plead not guilty as charged. To Count III-All the accused persons acknowledge that they understand the charge and plead not guilty. Ihua-Maduenyi: May we apply to come back on the 1st   and 2nd   to come back  to  take  the trial ……….” This is what the Court of Appeal had to say on the arraignment . “The appellant has not proved any irregularity in his arraignment before the lower court. He has also not shown how a miscarriage of justice has been occasioned to his disadvantage in the proceedings of  the lower court on 15 June, 2010, when he was  arraigned before that court. On the whole I hold that the lower court complied with the provisions of  section 215 of the Criminal Procedure Act when the appellant was arraigned before it and his plea to the PAGE| 6 (3) counts charge was taken. In the result, I resolve  the lone issue against the appellant”. There were fifteen accused persons arraigned before the Federal High Court Jos on 15 June, 2010.The appellant was one of them. He was accused person number 3. All of them were charged on three counts as stated earlier in this judgment. There is an irrebutable presumption after examining proceedings before the court on 15 June 2010 that the appellant was placed before the court unfettered. The charge was read and explained to him in Hausa language, the language he understands, to the satisfaction of the court, more-so as neither he or his counsel at that time complained of  not understanding the charge. The appellant entered a plea of not guilty to the three counts charge and his plea was recorded as not guilty. I am in the circumstances satisfied that the learned trial judge complied with the provisions of section 213 of the Criminal Procedure Act. By complying with section 215 of the Criminal Procedure Act the learned trial judge ensured that the appellant was given a fair hearing as provided by section 36 (6) of the Constitution. There is no merit in this appeal. Appeal dismissed. JUDGMENT (Delivered by CLARA BATA 06UNBIYI, JSC)   I read in draft the lead judgment just delivered by my learned brother, Rhodes-Vivour, JSC.   I agree that the appeal lacks merit and should be dismissed. My brother has outlined the background facts leading to the conviction and sentence of the appellant which was concurrently affirmed by the two lower courts.   The appellant was certainly unhappy with the outcome of the judgment and hence the appeal now before us on the sole issue and posing the question:- Whether from the records of proceedings, there was a proper arraignment of the appellant before the trial, conviction and sentence by the trial court.    It would appear from the foregoing issue that the appellant’s bone of contention is against the procedure adopted  in respect of the appellant’s arraignment. Section 215 of the Criminal Procedure Act is very specific and well spelt out on the subject of what should constitute a valid arraignment as follows:- “The person to be tried upon any charge or information shall be placed before the court PAGE| 7  unfettered unless the court shall see cause  otherwise to order, and the charge or  information shall be read over and explained to  him to the satisfaction of the court by the registrar or other officer of the court and such  person shall be called upon to plead instantly there to 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.” On the question of a valid arraignment, this court per Kutigi, CJN in the case of Lufadeju V. Johnson (2007) All FWLR  (Pt. 371) 1532 at 1537 had the following to say:- “‘Arraignment involves two things. One, the reading of the charge or information to the accused. Two, the response to the charge or  information by a plea from the accused. The plea can either be guilty or not guilty. It is only  when the above procedure is followed that a court of law will be said to have taken arraignment proceedings.”    In other words, there cannot be a valid arraignment without the accused being in court because he must plead to the charge personally. The court must also be satisfied  that the accused person was not before it in a representative capacity.    It is also mandatory that the accused should be told and  understands the nature of the charge brought against him. The explanation is only discharged if the court is fully satisfied that the accused is in fact well acquainted of the reason why he is brought to court.    The final stage is where the accused must plead to the charge. The plea must be voluntary and free from all forms of inhibitions or external detractions. The reason for the requirements and the strict compliance are to ensure a fair trial of an accused person and also to safeguard his interest at such a trial.  The failure to satisfy any of the essential trial criteria will render the whole trial incurably defective and null and void. See the cases of Kajubo V. State (1988) 1 NWLR (Pt. 73) 721; Erekanure V. State (1993) 5 NWLR (Pt. 294) 385 and Kalu V. State (1998) 13 NWLR (Pt. 583) 531. PAGE| 8 With reference to pages 67 – 68 of the record of appeal, the arraignment of the appellant was carried out in the trial court.. I agree with the submission by the learned counsel for the respondent that the requirement of the law was followed at the trial court. The procedure followed was indeed in strict accordance with the provisions of section 215 of the Act and Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In this case, there is nothing on the record to suggest that the trial court was not satisfied with the explanation of the charge to the appellant. See the case of Ogunye V. State (1999) 5 NWLR (Pt. 604) 548 at 553. In summary, I agree with the learned respondent’s counsel that section 215 of the Criminal Procedure Act was substantially complied with by the learned trial judge. My learned brother Rhodes-Vivour, JSC has dealt with the issue adequately. With the few words of mine and relying further on the comprehensive reasoning in the lead judgment, I also endorse the concurrent judgment by the two lower courts and dismiss the appeal which has no merit. Appeal dismissed. JUDGMENT (Delivered by Chima Centos Nweze, JSC) My Lord, Rhodes-Vivour, JSC, obliged me with the draft of the leading judgement just delivered now. I endorse the conclusion that, as this appeal is unmeritorious, it ought to be dismissed.    The question here revolves around the issue of  proper arraignment which this court has dealt with ] ad nauseam, Josiah v. State [1985] 1 NWLR (pt. 1) 125; [1985] 1 SC 406; Kajubo v. State [1988] 1 NWLR (pt 73) 721, 731; [1988] 3 SCNJ (pt. 1)  1179; Ebern v. State [ 1990]  7 NWLR (pt. 160) 113; Idemudia v. State [1999] 5 SCNJ 47; Onuoha Kalu  v The State [1998] 13 NWLR (pt. 583) 531;  Erekanure v The State [1993] 5 NWLR (pt. 294) 385; Omokuwajo v FRN (2013) LPELR -20184 (SC);  Sharfal v The State (1992) LPELR -3038 (SC) 11. Others include: Ogunye v The State [1999] 5 NWLR (pt 604) 548, 567; Ewe v The State (1992) LPELR -1179 (SC); Debie v The State [2007] 9 NWLR (pt 1038); Lufadeju and Anor v the State (2007) LPELR -1795 (SC); Olabode v The State(2009) LPELR-2542 (SC); Amako v The State (1995) LPELR-451 (SC); Olabode v The State (2009)J -2542 (SC); Amako v The State (1995) LPELR -451(SC); Josiah v State [1985] I SC 400, 416;Eyorokoomo v The State [1979] 8-9 SC 3; Dibie v the state[2007] 9 NWLR (pt 1038) 30, 61-62; edibo v the state (2007) LPELR – 1012 (SC) Adeniji v The State (2001)  LPELR -126 (SC) ; Oguniye v The state [1999] 5 NWLR (pt 604) 548, 555; Rafai V The state (2001) LPELR – 2963 (SC) ; Effiom v The State [1995] I  NWLR (pt 373) 507; Adeniji v The State [2001] FWLR  (pt 57) 809; Omokuwajo v FRN (2013) LPELR -20184 (SC; Ogunye v The state  [1999] 5 NWLR (pt 604) 548, 567.     From my perusal of the record of the trial court  or June 15, 2010, I am satisfied that the lower court, rightly, affirmed the trial court’s approach to the arraignment of the appellant. PAGE| 9 It is for these, and the more detailed, reasons in the leading judgement that I, too, shall dismiss this appeal as lacking in merit.  Appeal dismissed. JUDGMENT ( Delivered by MUSA DATTIJO MUHAMMAD, JSC ) On reading in draft the lead judgment of my learned brother Rhodes-Vivour JSC just delivered, I share his lordship’s reasoning and conclusion that the appeal lacks merit and that it has to be dismissed. Appellant’s complaint in the appeal is that his arraignment which is in breach of Section 36(1) of the 1999 Constitution and Section 215 of the Criminal Procedure Act renders the entire proceedings leading to his conviction and sentence, under Section 518(5) of the Criminal Code, Section 5(1) and 27(1) of the Fire arms Act and Section 15(2) of the Economic and Financial Crimes Commission Act 2004, a nullity. Appellant contends that the head of charge were neither read and explained to him nor were his plea thereto recorded by the court as required by law.    Learned respondent counsel dutifully -opposed the submission and maintains that the record of appeal clearly belies appellant’s contention. I agree.    My examination of the record shows clearly that the trial court, as required by law, had read, explained the various heads of charge to all those arraigned before it and recorded their respective pleas. The lower court could not have held otherwise.    This is an appeal against the concurrent findings of fact of by the two lower courts. Having failed to establish that these findings are in any way perverse and occasioning miscarriage of justice, the appellant’s must fail. See Ibhafidon V. igbinosu (2001) 8 NWLR (Pt 716) 653 and Jackie Phillips V. Eba Odan Commercial & Industrial Company Ltd (2012) LPELR-9718 (SC). I so hold. It is for the foregoing purely made by way of emphasis and more so the fuller reasons in the lead judgment that I also dismiss the appeal and affirm the concurrent decisions of the two courts below. JUDGMENT (DELIVERED BY AMIRU SANUSI, JSC) I read in draft form, the Judgment just delivered by my learned brother Olabode Rhodes-Vivour JSC. I agree with the reason and conclusion he arrived at, that appeal lacks merit and deserves to be dismissed. For purposes of emphasis and support, I will offer few comments of mine below. His lordship had ably summarised the facts giving rise to this appeal and the submissions of learned counsel for the Parties, hence I do not see any need to repeat them here. PAGE| 10 The grouse of the appellant’s learned counsel is that the appellant was not properly arraigned before the trial court because according to him, the charge was not sufficiently read and explained to the appellant in the language he understands to the satisfaction of the court, adding that the appellant’s plea to the counts was not recorded as required by law. Learned counsel for the appellant opined that where there is n non-compliance with the requirement of Sections 215 and 187 (1) of the Criminal Procedure Act, the proceedings is a mullty. Reliance was placed on the anthenties of Yerima vs the State (2010) 14 NWLR (pt 1231) 25; Kayode vs State (2008) 1 NWLR (pt 1068) 281 In his reaction, the respondent’s learned counsel argued that the provisions of Section 215 of the Criminal Code was duly complied with when the appellant was arraigned before the trial court and his pleas were taken as borne out by the record of appeal. It will apposite to refer to the record of proceedings of the trial court to see what had really transpired on the 15th June 2010 when the appellant and other co-accused persons were arraigned before the trial court. The proceedings of the trial court went as below:- “A. S. Garba appearing with A Aminu for all the accused person. Ihua-Maduemeyi- This matter is coming  up for the first tune, we humbly apply that the accused be allowed to take their plea. Court-All the accused persons indicate that they do not understand English. Mr Peter is called interpreter on oath.  English Language and translated by the  interpreter English to Hausa Language.   Court-Count I all the accused persons acknowledge that they understand the charge and plead not guilty to the charge. To Count 11 the 1st , 3rd , 8th , accused acknowledge that they understand the charge and plead not guilty as charged. To count III All the accused persons acknowledge that they understand that charge and plead not guilty Ihua-Maumyi.-May we apply to come back on the 1st and 2nd  to come back to take the trial My lords, permit me now,  to  considered the requirement of a valid arrangement under our laws. The Constitution of the Federal Republic of Nigeria 1999 by its provisions of Section 36 (6) provides that every person who is charged with a Criminal offence shall be entitled to be informed instantly in the language he understands, the nature of the offence he was accused of committing. What is required of a trial court is to cause the charge to be read and explained to the accused person in the language he understand and if he understands it, then his plea will be taken. See Darwoda vs the State (2000) 12 SCNJ 9 By the combined effect of the constitutional provisions mentioned supra and the provisions of Section 215 of the Criminal Code Act, there can be said to have been a valid arraignment only if The following requirements are satisfied, namely:- a)    The accused is placed before the court unfettered unless the trial court shall see cause to thE contrary or otherwise order b)    The charge or information shall be read over and explained to him in the language he understands to the satisfaction of the court by the court registrar, clerk or officer, and c)    The accused shall then be called upon to plead instantly thereto,    In multiplicity of decided authorities of this court, it has been held that these requirements must be satisfied and the record of the trial court must clearly show that the conditions listed above are complied with in order to safeguard the constitutional requirement ,of fair trial of those arraigned before a trial court. See Ademji vs State (2001) 5 SCNJ 379 at 350; Kajubo vs The State (1988) 1 NWLR (pt 721; Rufai vs the State (2001) 7 SCNJ 127 at 128. The above requirement of the law is therefore mandatory      In this instant case, the appellant was among the fifteen accused persons arraigned before the Federal High Court Jos (trial court). When arraigned before trial court as shown by the record of proceedings reproduced supra, the charges ware read and explained to him in Hausa language, the language he understood and after that his plea of “not guilty” was taken on each of the three courts he stood trial on.  To my mind therefore, there had been strick compliance with all the conditions or requirements of the law as required by Section 36 (6) of 1999 Constitution and Section 215 of the Criminal Procedure Act.    It needs to be noted also that the appellant as one of the accused persons arraigned before at the trial court, was represented by a counsel. The learned defence counsel did not at any time, object or complain about the procedure adopted by the trial court on 15th June, 2010, the date of arrangement of the appellant. Also as rightly found by the court below, the learned counsel failed to show that miscarriage of Justice was occasioned to him on the date of the arraignment and I therefore do not see any irregularity with the said arraignment of the appellant and therefore hold that there was proper arrangement as rightly found by the court below; Thus, for these few comments advanced by me in support of lead Judgment and for the fuller and more detailed reasons in the lead Judgment of Rhodes-Vivour JSC, I also dismiss this appeal for want of merit. I affirm the concurrent decisions of the two lower courts. Appeal dismissed.         APPEARANCES: R. GEORGE with him; B. Damilare for the Appellant. C.U. IHUA-MADUENYI with him; C. Ihua-Maduenyi for the Respondent.

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