ELDER MOSES ADETOYESE OJO & ORS v. THE STATE
(2016)LCN/8471(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/AK/10C/2013
RATIO
CRIMINAL LAW: WHETHER A DEFENDANT CAN RAISE A VALID OBJECTION TO AN INDICTMENT
In determining the sole issue in this appeal, it must be noted that the parties are not in dispute as to the fact that an Accused or Defendant in a criminal trial can raise a valid objection to an indictment or that he reserves the right to have the charge quashed. See. Ezeze V. State (2004) 14 NWLR (Pt. 894) 491; Fawehinmi V A. G. Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707; FRN V. Obegolu (2006) 18 NWLR (Pt. 1010) 188; Abacha V. State (2002) 11 NWLR (Pt. 779) 437. (2002) 7 SC (Pt. 1) 1; Ohwovoriole V. Fed. Republic of Nigeria (2003) 2 NWLR (Pt. 803) 176, (2003) 1 SC (Pt. 1) 1. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL PROCEDURE: WHAT IS A VALID ARRAIGNMENT
In this respect, it is important to bear in mind the meaning of “arraignment”. A valid arraignment in law and as stipulated under Section 215 of the Criminal procedure Law cap. 35 Laws of Osun State 2002 would consist of the following (a) that the accused person who is to be tried should be physically present before the trial Court unfettered. (b) that the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the Judge by the Registrar of the Court; (c) that the Accused shall then be called upon to plead instantly to the charge; and (d) that the plea of the Accused shall also be instantly recorded by the Judge. These requirements must co-exist for there to be an arraignment properly so called.
See: Ihekwoba & Anor V The State (2004) All FWLR (Pt. 228) 738 At 749 -750; Lufadeiu V. Johnson (2007) 8 NWLR (Pt. 1037) 538; Amanchukwu V. FRN (2007) 6 NWLR (Pt. 1029) 1; Solola V. State (2005) 11 NWLR (Pt. 937) 460; Chukwu V. State (2005) 1 NWLR (Pt. 908) 520; Amala V. State (2004) 12 NWLR (Pt. 888) 520; Ezeze V. State (2004) 14 NWLR (Pt. 894) 491; Umuolo V. State (2003) 3 NWLR (Pt. 808) 493; Okeke V. State (2003) 15 NWLR (Pt. 842) 25. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. ELDER MOSES ADETOYESE OJO
2. STRONG PASSION CONCEPT NIG. LTD
3. OLALEYE OLANIPEKUN
4. JEGEDE AYOOLA Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/Ruling of the Honourable Justice A. O. Ogunlade delivered in Suit No. HOS/7C/2012 on 16th November, 2012 in the Osogbo Judicial Division of the High Court of Osun State.
The Appellants were charged by way of complaint on five count charge of advance fee fraud, stealing and conspiracy before the High Court of Osun State on 5/4/2012. In the pendency of the charge, on 5/6/2012, Mr. Kehinde Adesiyan of Counsel to the Appellants brought a motion on Notice praying the Court for the following orders.
1. An order quashing the five counts of conspiracy to obtain through false pretence, fraud, stealing inducement contained in the complaints against the 1st Accused person and others on the 5th April 2012 as it related to the 1st Accused person.
2. And for such further or other orders as this Honourable Court shall deem fit to make in the circumstance of this case.
The grounds upon which the application was predicated are as follows:
(a) The proof of evidence as
contained in the complaints discloses no prima facies case against the Accused/Applicant as to require him to stand trial before this Court or any Court of justice in Osun State.
(b) The pieces of evidence as disclosed in the proof of evidence are legally inadmissible and unsupportive of the charge preferred against the Applicant.
(c) Upon a calm, dispassionate, judicial and judicious consideration of the entire indictment as contained in the complaint filed in this Court on the 5th April 2012 there is no probability of guilt against the Applicant.
(d) The character of evidence available against the Applicant as contained in the proof of evidence in conjective, suppository and do not irresistibly point to the guilt of the Applicant.
(e) The companion and contrast of the charges with the proof of the alleged offence and the list of witnesses disclose that the complaints brought against the Accused Applicant is frivolous, vexatious, persecutory, oppressive, vindictive and an abuse of Court process.
(f) A calm and dispassionate look at the facts as
contained in the complaint in this charge revealed irresistibly that it is such that this Honourable Court is bereft of criminal jurisdiction to entertain.
The said motion by the Applicants Appellants was supported by affidavit and Exhibits.
On 4/10/2012, when the accused persons Appellants were brought to Court, Counsel to the Appellants opposed the application of the learned Director of Public Prosecution – Mr. Dapo Adeniji that the charge be read to the accused persons and their pleas be taken as such step would bring the accused properly before the Court.
The basis of the objection of the Counsel to the Appellants was that his client is challenging the jurisdiction of the Court to hear the suit and that it is the duty of Court to determine same first before any other matter.
At pages 188 – 189 of the Record, the learned trial Judge ruled thus:
“The pertinent question at this juncture is “When is an Accused person properly before the Court of law?”
Section 215 of the CPA provides that – a person to be tried upon any charge or information shall be placed before the Court and the charge or
information shall be read and explained to him to the satisfaction of the Court by the Registrar of the Court and such person shall be called upon to plead instantly thereto, It is after this ritual that an accused person can be said to be properly before the Court.
Although the issue of jurisdiction raised by the 1st Accused person goes to the instant suit. However proper consideration of same should come when the Accused person are properly before the Court, which involves reading of the charge and taking of the pleas.
To my mind, this type of arrangement will pave way to issue of jurisdiction of this Court over the matter. In essence, the objecting stance of the defence overruled. The Registrar is invited upon to read the charge to the accused persons and their pleas to follow immediately.”
?Dissatisfied with this decision, the Appellants filed a Notice of Appeal containing three (3) grounds of appeal into this Court on 30/11/2012.
The relevant briefs of argument are as follows:
1. Appellants brief of argument dated 8/4/2014 and filed on the same day but deemed filed on 29/10/2014-
Settled by Kehinde Adesiyan. Esq.
2. Respondent’s brief of argument filed on 18/2/2015 but deemed filed on 2/3/2016 – Settled by Dapo Adeniji DPP, Osun State.
3. Appellants Reply brief filed on 13/10/2015 but deemed filed on 2/3/2016 – Settled by Kehinde Adesiyan, Esq.
Learned Counsel for the Appellants nominated a sole issue for determination thus:
“Whether the trial Court is right to first arraign the Appellants before considering and determining application which challenge its competence to grant consent to prefer a charge or charges against the Appellants that bother on jurisdiction.”
Learned Counsel for the Respondent also formulated a sole issue for determination as follows:
“Whether a charge/complaint should not first be read out to the Accused persons for the purpose of plea, before any objection thereto (i.e. charge) could be entertained by the Court.”
On the sole issue, Learned Counsel for the Appellants submitted that when an issue of jurisdiction of Court to entertain a matter is raised before a Court, it behoves on that Court first and
timeously determine that issue of its competence first before proceeding on that matter. He argued that the jurisprudential justification of this settled position of law is that the issue of jurisdiction is the threshold over which all issues and matter in any case revolves. He referred on this to the cases of Chief Emimigbe Omokhafe & Ors V. The Military Administrator, Edo State of Nigeria (2005) All FWLR (Pt. 243) 629 at 640; Prof. A. D Olutola V. University of Ilorin (2005) All FWLR (pt.245) 1168 – 1169; Mkpen Tiza V. Iorakpen Begha (2005) All FWLR (pt.272) 200 at 214 – 215.
He submitted that in the instant case, the 1st Appellant upon the service of the criminal complaints against them brought an application dated 5th day of June 2012 praying the lower Court for an order quashing the five counts of conspiracy to obtain through false presence, fraud, stealing inducement contained in the complaints filed against the Appellants on the 5th April 2012. That the sixth ground of the application is as follows:
“(f) A calm and dispassionate look at the facts as contained in the complaint in this charge revealed irresistibly that it is
such that this Honourable Court is bereft of criminal jurisdiction to entertain.”
He submitted that since the application is challenging the competence of the Court to assume criminal jurisdiction in this matter, the lower Court ought to have heard and determine the issue of jurisdiction before calling upon the Appellants to make plea to the charges against them.
Appellants Counsel submitted that the legal curiosity that arose in this case is whether arraignment of accused person(s) is part of criminal trial or better put whether with the arraignment, the trial Court had already assumed criminal jurisdiction.
Counsel submitted that of equal strength is the second application brought by the appellants before the lower Court seeking for an order to stay further criminal proceedings pending the determination of Suit No. Hos/M/.912012 between Hon. Adetoyese Ojo v. Governor, Osun State and Others.
That this application was equally pending in Court but the lower Court jettisoned its pendency and called upon the Appellants to enter their plea.
He argued that the position canvassed is strengthened by the decision of this
Court in the case of Edward Batisan & Anor V. Chief Titus Okuniga (2005) All FWLR (Pt. 276) 772 at 820 – 822 to the effect that:
“Once the jurisdiction of a Court is called into question that Court becomes powerless to do anything in the cause or matter before it; other than inquire into the existence or lack of jurisdiction to entertain the cause or matter, it cannot do anything in furtherance of the cause or matter.”
He submitted that the learned trial Judge failed to consider the authorities cited before it which includes Abacha V. State (2002) FWLR (Pt. 118) Pg. 1224; Ikomi V. State (1986) 3 NWLR (pt. 28) pg. 340 before coming to the conclusion reached in the case.
Learned Counsel for the Respondent on the other hand submitted that a Court lacks jurisdiction to entertain a matter where the case before it amongst other things, has not been initiated by due process of the law or has not fulfilled any condition precedent to the exercise of the Court’s jurisdiction.
He referred to the case of Abubakar & Ors v. Nasamu & Ors (2012) 5 SCM 1 at 32,
?He submitted
that the contention in this appeal is – at what time should a trial Court in a criminal proceedings entertain an objection to the jurisdiction of the Court to try an Accused person on the process initiating the criminal proceedings. In other words, the issue, is not the examination of the contents or the grounds of the objection brought by an accused person but at what stage in the proceedings should the said objection be adjudicated upon.
He referred to the provision of Section 215 of the Criminal Procedure Law, cap. 35 Laws of Osun State, 2002.
He submitted that the wordings of Section 215 of the CPL is mandatory and not directory as they are preceded by the word “shall” to read the charge and to allow accused respond before any further step is taken. Consequently, said Counsel, failure to comply with the intendment of the law as aforesaid will render the proceedings a nullity. He submitted that an accused is not properly and validly before the Court unless and until the proceeding is ignited by arraignment.
?He submitted further that where an Accused person has not been properly arraigned before any competent Court of law, the
Court cannot make any seemingly appropriate pronouncement as regard the charge before it.
Respondent’s Counsel further referred to the provision of Section 167 of the Criminal procedure Law (supra) and decision of the Court of Appeal in the case of Alinta & Ors V. FRN (2008) 29 WRN 166, where the Court stated thus:
“An Accused person may, after the charge is read to him before pleading to it, object to the charge or to the jurisdiction of the trial Court. And if an Accused person enters an objection his physical presence in Court will not be necessary for the hearing of the objection or any other preliminary application. The presence of an Accused person is only mandatory from the commencement and throughout the trial proceedings which begins with a plea to the charge.”
Based on the above, the Learned Counsel for the Respondent submitted that the above provision postulates that any objection or preliminary objection as to the defect or competence of the charge is read to the Accused person and before the plea is taken.
?And, curiously and rather inconsistently, also that the appropriate stage for so doing is
at the arraignment stage when the trial can be said to have commenced.
Respondent’s Counsel submitted that in a case like this, the provision of Section 167 of the Criminal Procedure Law must be given its literal interpretation. He referred to the cases of:-
1. Abubakar & Ors V. Nasamu & Ors (2011) 12 (Pt. 2) SMS 492 at 508.
2. Toriola V. Williams (1982) SC 27.
3. National insurance Commission V. The Nigeria Council of Registered Insurance Brokers (2006) 44 WRN 79 at 85.
4. Nwazuike V. A. G. Federation (2007) 14 WRN 112 at 126 – 127.
And submitted that the law is settled that when the words of the statute is clear and unambiguous, the Court must give it its literal meaning.
Learned Counsel for the Respondent submitted that by the combine reading of Sections 167 and 215 of the Criminal Procedure law (supra) coupled with the decision in the case of Alintah & Ors V. FRN supra), it is an elementary position of the law that the charge must first be read to the accused person before a Court, before any objection
could be raised thereto.
He urged us to hold that the ruling of the trial Court delivered on 16th November, 2012 refusing the objection of the appellants and calling on the Appellants to be first arraigned represents the position of the law.
In determining the sole issue in this appeal, it must be noted that the parties are not in dispute as to the fact that an Accused or Defendant in a criminal trial can raise a valid objection to an indictment or that he reserves the right to have the charge quashed.
See. Ezeze V. State (2004) 14 NWLR (Pt. 894) 491; Fawehinmi V A. G. Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707; FRN V. Obegolu (2006) 18 NWLR (Pt. 1010) 188; Abacha V. State (2002) 11 NWLR (Pt. 779) 437. (2002) 7 SC (Pt. 1) 1; Ohwovoriole V. Fed. Republic of Nigeria (2003) 2 NWLR (Pt. 803) 176, (2003) 1 SC (Pt. 1) 1.
In this appeal, the question that arises for determination is at what stage of the proceedings could an Accused raise objection to the indictment or brings an application to quash charges.
Learned Counsel for the Appellant eventually conceded that such application would be taken immediately after the
charge has been read to the Accused person. The Learned D.P.P for the Respondent insisted that such application could only be heard after arraignment.
In this respect, it is important to bear in mind the meaning of “arraignment”. A valid arraignment in law and as stipulated under Section 215 of the Criminal procedure Law cap. 35 Laws of Osun State 2002 would consist of the following (a) that the accused person who is to be tried should be physically present before the trial Court unfettered. (b) that the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the Judge by the Registrar of the Court; (c) that the Accused shall then be called upon to plead instantly to the charge; and (d) that the plea of the Accused shall also be instantly recorded by the Judge. These requirements must co-exist for there to be an arraignment properly so called.
See: Ihekwoba & Anor V The State (2004) All FWLR (Pt. 228) 738 At 749 -750; Lufadeiu V. Johnson (2007) 8 NWLR (Pt. 1037) 538; Amanchukwu V. FRN (2007) 6 NWLR (Pt. 1029) 1; Solola V. State (2005) 11 NWLR (Pt. 937) 460;
Chukwu V. State (2005) 1 NWLR (Pt. 908) 520; Amala V. State (2004) 12 NWLR (Pt. 888) 520; Ezeze V. State (2004) 14 NWLR (Pt. 894) 491; Umuolo V. State (2003) 3 NWLR (Pt. 808) 493; Okeke V. State (2003) 15 NWLR (Pt. 842) 25.
For clarity of purpose and perhaps for proper understanding of concepts, the stage under Section 215 of the CPL whereby the charges are read and explained to the Accused in a language that he understands is separate and distinct from the stage where the Accused is called upon to take his plea and the recording of that plea. In concrete terms, it is the combination of those two stages along with their preliminaries that is known as “arraignment”.
?The provision of Section 167 of the Criminal Procedure law (supra) indeed seems more appropriate to the specific concern of the instant appeal. The Section provides:
“Any objection to a charge for any formal defect on the fact thereof shall be taken immediately after the charge has been read over to the accused and not later”.
A combine reading of the provisions of Section 167 and Section 215 of the criminal Procedure Law (supra) seems to
give recognition to the fact that an indictment is defined as a formal written accusation issued against a person charged with crime. It is only an accusation. It is the physical means by which a Defendant is brought to trial. The sole purpose of indictment is to identify the person’s alleged offence. Thus, failure by a trial Court to record that the charge was read and explained to the Accused to its satisfaction before taking his plea does not Ipso Facto render the trial a nullity.
See Akpan V. State (2002) 12 NWLR (Pt. 780) 189.
The Court of Appeal considered the provision of Section 167 of the Criminal Procedure Law in the case of Alintah & Ors V. FRN (2008) 29 WRN 166, 189 where Mukhtar JCA (as he then was) held that:
“An Accused person may after the charge is read to him before pleading to it object to the charge or to the jurisdiction of the trial Court. And if an Accused person enters an objection his physical presence in Court will not be necessary for the hearing of the objection or any other preliminary application. The presence of an Accused person is only mandatory from the commencement and throughout
the trial proceedings which begins with a plea to the charge.”
Clearly, the above represents the true position of the law and at the same time brings out the fact that trial in a criminal trial begins on arraignment that the procedure under Section 215 of the CPL can be divided into the pre-arraignment and the post arraignment stages and that the proper time to raise an objection to the charge and/or to hear an application to quash charges is the pre-arraignment stage after the charges must have been read.
In the instant case, the learned trial Judge was in error to have ruled that he could only take the appellants application to quash charges only after their plea must have been taken or after arraignment.
The application of the Appellants to quash charges ought to be taken after charges are read and explained but before taken of plea.
In the circumstance, the sole issue in this appeal is resolved in favour of the Appellants.
The appeal is meritorious and it is allowed.
The Ruling of A.O Ogunlade J. of 16/11/2012 in Suit No. HOS/7C/12 is set aside.
Suit No. HOS/7C/12 is accordingly remitted to the Hon. Chief
Judge, Osun State for trial de novo by another Judge other than Hon. Justice A.O Ogunlade.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Pleading to a charge before raising the issue of jurisdiction as sought by the trial Court, would have amounted to foisting a waiver and submission to jurisdiction on the appellant.
The timeous objection after arraignment and before the commencement of the trial (signaled by a plea) in respect of the charges sought to be quashed is the appropriate thing, as it would be unreasonable to seek to quash a charge and at the same time (simultaneously) plead thereto; be it guilty” or “not guilty”.
I abide with the lead judgment and all the consequential orders therein made, by Lord, Mojeed Adekunle Owoade JCA.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. He has fully considered the only issue presented for determination. I adopt the reasoning and conclusion in the said judgment as mine in allowing the appeal of the Appellants. The application of the
Appellants to quash the charges ought to have been entertained after the charges were read and explained to them but before taking their pleas.
The ruling of the lower Court is also set aside by me.
Suit No. HOS/7C/12 is hereby remitted to the Hon. Chief Judge, Osun State for trial de novo by another Judge other than Hon. Justice A. O. Ogunlade.
Appearances
Kehinde AdesiyanFor Appellant
AND
Adedapo Adeniji (D.P.P. Osun State) with him, M. O. Adedokun (Principal State Counsel)For Respondent
