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EZEOGWUM v. COP (2020)

EZEOGWUM v. COP

(2020)LCN/14311(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/LAG/CR/193/2019

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

IKECHUKWU EZEOGWUM APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE IMPORTANCE OF AN ARRAIGNMENT

Arraignment is a very important step in the prosecution process. It is the initial step in the prosecution of a person accused of a committing a crime in a criminal trial:YAHAYA vs. THE STATE (supra) at 307. In OKEKE vs. THE STATE (2003) 15 NWLR (PT. 842) 25 at 73 Ogundare, JSC stated:
“An arraignment is a not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge. All the authorities recognize that where there is no proper arraignment, there is no trial.”
In his contribution at page 95, Iguh, JSC said:
“Without a valid arraignment of the accused person, no trial in law would have commenced and, no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.” (Underlining supplied). PER OGAKWU, J.C.A.

FACTORS TO BE COMPLIED WITH FOR THERE TO BE A VALID ARRAIGNMENT

It is the requirement of the law that for there to be a valid arraignment, the mandatory stipulations of Section 215 of the Criminal Procedure Act must be complied with, namely:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.
b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an 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.
d) The plea of the accused shall also be instantly recorded by the Court.

The above requirements have been held to be very fundamental and renders a trial a nullity where they are not complied with. SeeKAJUBO vs. THE STATE (1988) 1 NWLR (PT 73) 721 at 732, EYOROKOROMO vs. THE STATE (1979) 6-9 SC 3, MADU vs. THE STATE (2012) 15 NWLR (PT 1329) 405 at 439, FRN vs. ABUBAKAR (2019) LPELR (46533) 1 at 7-16, HASSAN vs. FRN (2016) LPELR (42804) 1 at 22-24, MUSA vs. THE STATE (2016) LPELR (42812) 1 at 34-36, DAUDA vs. FRN (2017) LPELR (41910) 1 at 3-5, FRN vs. IWUAFOR (2019) LPELR (46901) 1 at 15-18, FRN vs. KAYODE (2019) LPELR (48997) 1 at 12-14 and 18 and AKEEM vs. THE STATE (2017) LPELR (42465) 1 at 35-36.
In FRN vs. IWUAFOR (supra), it was held that the proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused person’s constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before evidence was adduced, it constitutes a flagrant non-compliance with Section 215 of the Criminal Procedure Act, which impinges on the constitutional right of the accused person to a fair hearing. Such a trial is nullity. See HASSAN vs. FRN (supra) and DAUDA vs. FRN (supra). In MUSA vs. THE STATE (supra), the appellant therein was arraigned on a three count Charge, but the Records showed that her plea was not taken in respect of Count 2. The apex Court held that it was a fundamental vice which vitiated the trial. PER OGAKWU, J.C.A.

WHETHER OR NOT WITHOUT A VALID ARRAIGNMENT, NO TRIAL IN LAW WOULD HAVE COMMENCED

Let me iterate that the law remains that without a valid arraignment, no trial in law would have commenced. Furthermore, that arraignment is not a matter of mere technicality but the very important initial step in the trial of a person in a criminal charge: OKEKE vs. THE STATE (supra). If the initial step in a criminal charge is for plea to be taken and then evidence adduced to prove the Charge, when was the evidence adduced in this matter seeing that the lower Court delivered judgment immediately after it took plea. (See page 721 of Volume II of the Records). It is important to underscore that it is not as though any plea whatsoever was taken before Abang, J., prior to the plea taken on the date of the judgment. No. There was no plea. When a matter is to start afresh before another Judge, fresh plea must first be taken by the new judge before proceeding any further in the matter: SANMABO vs. THE STATE (supra) at 316-317. PER OGAKWU, J.C.A.

WHETHER OR NOT JUDICIAL DISCRETIONS MUST BE EXERCISED JUDICIALLY AND JUDICIOUSLY

But like all judicial discretions it must be exercised judicially and judiciously. An appellate Court is always reluctant to interfere with the way a trial judge exercised his discretion, but it would be compelled to do so if the discretion was wrongly exercised; if the exercise of discretion was tainted with some illegality or substantial irregularity; if there is a miscarriage of justice; or if it is in the interest of justice to interfere: OGUNSANYA vs. THE STATE (2011) 12 NWLR (PT 1261) 401 at 438. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lagos Division in CHARGE NO. FHC/L/225C/2009: COMMISSIONER OF POLICE vs. NNAMDI OKOYE & ANOR. In the judgment of the lower Court which was delivered on 13th December, 2018, the Appellant, who was the 2nd Defendant at the lower Court was convicted and was given a custodial sentence. The Appellant being dissatisfied with the judgment appealed against the same. The scarified judgment of the lower Court is at pages 1007-1106 of Volume II of the Records, while the Notice of Appeal which was filed on 17th December, 2018 is reproduced at pages 1107-1110 of Volume II of the Records.

The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The briefs of argument which the learned counsel for the parties relied upon in urging the Court to uphold the respective submissions therein in the determination of the appeal are:
1. Appellant’s Brief of Argument filed on 6th June, 2019.
2. Respondent’s Brief of Argument filed on 31st July, 2019.

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  1. Appellant’s Reply Brief filed on 19th August, 2019.
    All the briefs were deemed as properly filed on 27th May, 2020.
    The Appellant nominated a sole issue for determination, namely:
    “Whether based on the procedure, facts and materials from the records of the trial Court, the Appellant could have been convicted; and, if the answer is in the affirmative, whether the Appellant was sentenced excessively.”

The Respondent on its part crafted three issues for determination thus:
“1. Whether the procedure adopted by the lower Court in the amendment of charge, arraignment and trial of the Appellant in Charge No. FHC/L/225C/2009 is valid in law? (Issue one is raised from paragraphs 3.1 to 4.0 of the Appellant’s brief of argument).
2. Whether the lower Court was right under the law to convict the Appellant on the offences of conspiracy and unlawful possession of forged above oil sheen spray based on the Prosecution evidence before the Court? (Issue two is raised from paragraphs 4.1 to 5.9 of the Appellant’s brief of argument).
3. Whether the terms of imprisonment the Appellant was sentenced to is

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excessive in law? (Issue three is raised from paragraphs 6.0 to 6.4 of the Appellant’s brief of argument).”

The Appellant in his Reply Brief urged the Court to discountenance the issues distilled by the Respondent, since the Respondent, not having filed a cross-appeal or Respondent’s Notice, cannot raise fresh issues outside the Appellant’s grounds of appeal. Without a doubt, it is the law that issues for determination in an appeal must be predicated on the grounds of appeal, and that a Respondent who has neither cross appealed nor filed a Respondent’s Notice cannot validly raise any issue for determination that is outside the Appellant’s grounds of appeal. See APGA vs. UMEH (2011) 8 NWLR (PT 1250) 544 and PML (NIGERIA) LTD vs. FRN (2017) LPELR (43480) 1 at 18-19. The Respondent neither filed a cross appeal nor Respondent’s Notice; so the Appellant will be correct in his contention if, in fact, the issues distilled by the Respondent do not derive from the Appellant’s ground of appeal.
​I have considered the three issues formulated by the Respondent with the finery of a toothcomb, and even though the

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Respondent stated that it raised the issues from the argument in various paragraphs of the Appellant’s Brief, the said issues are in actual sense rooted in the grounds of appeal. The Respondent’s issue number one is grounded in the complaint in ground 3 of the grounds of appeal; issue number two addresses the complaint in grounds 4 and 5 of the grounds of appeal, while issue number three is based on grounds 1 and 2 of the grounds of appeal. It therefore follows that even though the Respondent did not cross appeal or file a Respondent’s Notice, the issues it distilled for determination are not incompetent as the said issues derive from, and are firmly rooted in the Appellant’s grounds of appeal.

As a matter of fact, the issues for determination crafted by the Respondent are succinct and apt. They conduce to clarity and ease of comprehension as opposed to the sole issue distilled by the Appellant. Consequently, I will not discountenance the issues as urged on the Court by the Appellant. The Respondent’s issues would actually form the linchpin on the basis of which I will consider the submissions of learned counsel and resolve

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this appeal.

ISSUE NUMBER ONE
Whether the procedure adopted by the lower Court in the amendment of the Charge, arraignment and trial of the Appellant in Charge No. FHC/L/225C/2009 is valid in law?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that there was no valid trial at the Lower Court because after leave was granted for the Charge to be amended to add the Appellant as the 2nd Defendant to the Charge, no amended Charge was filed and when the matter started afresh before another Judge, following the transfer of the Judge who was previously presiding over the matter, no fresh plea was taken and the matter proceeded to hearing. It was opined that it was on the day fixed for judgment that the lower Court took the plea of the defendants and thereafter proceeded to deliver its judgment and convicted the Appellant.

The Appellant maintained that the proceedings leading up to the judgment was a nullity for contravening Section 215 of the Criminal Procedure Act. It was stated that the plea which was taken just before judgment was delivered did not cure the defect in the trial and that the trial remained null and void.

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It was asserted that the trial conducted and evidence led without plea being first taken is a nullity. The cases of EDET vs. THE STATE (2008) 14 NWLR (PT. 1106) 52 at 65, ERONINI vs. THE QUEEN (1953) 14 WACA 366 at 368, EDIBO vs. THE STATE (2007) 13 NWLR (PT. 1051) 306 and SANMABO vs. THE STATE (1967) NMLR 314 were referred to.

It is the further submission of the Appellant that the absence of a clear Charge on which the trial was based occasioned a miscarriage of justice as he had to defend an unknown offence and he was convicted and sentenced for the unknown offence. It was conclusively submitted that the case of ONWE vs. THE STATE (2018) 8 NWLR (PT. 1612) 217 relied upon by the lower Court to hold that the Appellant waived non-compliance with the procedure to taking fresh plea to the Charge is distinguishable, or that the dictum the lower Court relied upon was made obiter.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the Amended Charge was duly filed and plea taken before the previous presiding judge at the Lower Court. The Court was urged to invoke the presumption of regularity in Section 168 (1) of the Evidence Act

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and hold that the Amended Charge was duly filed. The cases of UDEH vs. THE STATE (1999) 7 NWLR (PT. 609) 1 and AKPAN vs. THE STATE (2012) 12 NWLR (PT 780) 189 were relied upon. It was further submitted that even if an Amended Charge was not filed after the order for amendment, that it did not invalidate the Amended Charge, the Appellant having been served with the Amended Charge and he pleaded thereto.

It was posited that amendment can be made on an oral application and that it will be valid if the defendant pleads to the Charge as orally amended videOSAREREN vs. FRN (2018) LPELR – 43839 (SC) at 30-33. It was asserted that the mere fact that a fresh plea was not taken by the judge who took over the hearing of the matter and concluded it did not make the trial a nullity; since no purpose would be served by taking the fresh plea. The decision of the Court of Appeal of Botswana in STATE vs. NGWAKO 1990 BLR 563 (CA) was cited in support.

Without conceding that the failure to take a fresh plea on the Amended Charge was a defect, the Respondent contended that it was a procedural mix-up which the Appellant waived by allowing trial to continue and that

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any defect in trial is to be raised in a timely manner otherwise it cannot be contended on appeal if it was not raised at the trial Court in a timely manner. The cases of ONWE vs. THE STATE (supra) and JOHN vs. THE STATE (2019) 9 NWLR (PT 1676) 160 were referred to. It was conclusively submitted that the failure of the lower Court to take fresh plea before commencing trial was solved by plea having been taken before judgment was delivered. The said plea, it was opined, was akin to the power of the Court to amend the Charge and take fresh plea at any stage before judgment. The cases of OSAREREN vs. FRN (supra) and FRN vs. BAFARAWA (2016) LPLER (40482) (CA) at 23-24 were called in aid.

APPELLANT’S REPLY ON LAW
The Appellant submits in the Reply Brief that trial commences upon arraignment and taking of plea vide MUSA vs. THE STATE (2017) 4 NWLR (PT. 1555) 187 at 206. It was therefore contended that the trial of the Appellant commenced on 13th December, 2018 when the plea was taken before the lower Court and that no witness was called because the Lower Court proceeded to deliver judgment immediately thereafter, convicting the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESOLUTION OF ISSUE NUMBER ONE
For purposes of clarity and ease of comprehension, it would be appropriate to give the necessary background to the arraignment, trial and conviction of the Appellant as disclosed by the cold printed Records. It is rudimentary law that when it is alleged that there has been invalid arraignment in that the mandatory provisions of Section 215 of the Criminal Procedure Act (which was the regnant legislation at the time the trial commenced at the lower Court) had not been compiled with, all that an Appellate Court needs to do is to examine the Records on the day of the arraignment to see if the arraignment is proper. It is only the Record that has to be examined.

The matter commenced before Sani, J., and upon his transfer, it was reassigned to Abang, J. The Respondent relied on the decision of the Botswana Court of Appeal to contend that since the Appellant had pleaded to the Charge before Sani, J., that no purpose would have been served by Abang, J. taking a fresh plea before he took the testimony of the witnesses. The decision of the Court of Appeal Botswana is not binding. It is merely persuasive. It can only persuade

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this Court where Nigerian laws and decisions of Nigerian Courts are silent on the point of law in question. See YAHAYA vs. THE STATE (2002) LPELR (3508) 1 or (2002) 3 NWLR (PT. 754) 289 at 305. I am not persuaded by the said Botswana decision because our laws and Court decisions are well developed on the point. So I will leave for the Tswanas, what happens in Botswana and apply in Nigeria, what Nigerian law stipulates and what Nigerian Courts have decided.

Arraignment is a very important step in the prosecution process. It is the initial step in the prosecution of a person accused of a committing a crime in a criminal trial:YAHAYA vs. THE STATE (supra) at 307. In OKEKE vs. THE STATE (2003) 15 NWLR (PT. 842) 25 at 73 Ogundare, JSC stated:
“An arraignment is a not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge. All the authorities recognize that where there is no proper arraignment, there is no trial.”
In his contribution at page 95, Iguh, JSC said:
“Without a valid arraignment of the accused person, no trial in law would have commenced and, no matter the

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strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.” (Underlining supplied)
It is the minimum requirement of the law that necessary steps to a valid arraignment as provided in Section 215 of the Criminal Procedure Act must be complied with in order to ensure that the constitutional provision of fair hearing which inures in favour of an accused person, especially as it relates to Section 36 (6) of the 1999 Constitution which, inter alia, requires that every person charged with a criminal offence shall be informed promptly in the language he understands and in detail of the nature of the offence, are met. Given the paramount position which arraignment occupies in a valid criminal trial, the required standard must be complied with. Let us now explore the Records, which speaks for itself, to appreciate what happened at the lower Court.

One Nnamdi Okoye, the appellant in a related appeal, was initially charged alone on a four count Charge filed on 2nd July 2009. The said Charge is at pages 1-2 of Volume I of the Records. At the

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proceedings of the lower Court on 6th October, 2009, Coram: Sani, J., the said Nnamdi Okoye was arraigned and his plea was taken. See pages 34-38 of Volume I of the Records. On 20th January, 2010, the Prosecution filed a motion to amend the Charge in order to add the Appellant as the second defendant to the Charge. The said motion is at pages 87-105 of Volume I of the Records. For ease of reference, the order sought on the motion is:
“AN ORDER granting leave to the complainant/applicant and/or the prosecuting counsel to amend and add to the charge the name Ikechukwu Ezeogwum (m) the 2nd accused person as per the anneture [sic] herewith attached and marked as exhibit NPF 1.”
In paragraph 7 of the affidavit in support of the motion it is deposed thus:
“7. That the proposed amended criminal charge is hereby annexed and marked as exhibit NPF 1.” (See page 88 of Volume 1 of the Records)

The motion to amend the Charge was heard by the lower Court, Coram: Sani, J. on 1st March, 2010 and he made an order granting the application in following terms:
“Application is granted as prayed.” (See pages 143-145 of

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Volume 1 of the Records)
So in granting the application as prayed, the lower Court gave the prosecution leave to amend the Charge, in terms of the annexure marked as Exhibit NPF1 to the application. The leave having been granted, and without there being any Amended Charge filed in terms of the leave that was granted, the plea of the defendants were taken by the lower Court, Coram: Sani, J. and they pleaded not guilty. (See Pages 145-147 of Volume 1 of the Records).

Subsequently, Sani, J. was transferred out of the Lagos Division of the lower Court and the matter was reassigned to Abang, J. On 18th May 2010 when the matter first came up before Abang, J., the prosecuting counsel informed the lower Court that the matter was a reassigned matter and that it was for trial. He then applied for a date for trial since his witnesses were not in Court. The learned defence counsel confirmed the position as stated by the prosecution, whereupon the matter was adjourned for definite hearing without fail. (See pages 178-179 of Volume I of the Records). Let me intercalate at this stage and state that it is the duty of the trial judge to ensure compliance with the

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stipulations of Section 215 of the Criminal Procedure Act: HASSAN vs. FRN (2016) LPELR (42804) 1 at 9. The trial judge is dominis litis and ought to be in charge of the proceedings before him. It is in this wise that I find avoidable, the obloquy which the lower Court stacked on the Appellant’s counsel in the judgment, for having misled and tricked the Court to proceed to hearing when plea had not been taken. It was absolutely unnecessary. The Court is the master of its records. Upon the prosecuting counsel applying for a date for trial, the Court as master of its records ought to have ascertained if indeed the necessary preliminaries to commencement of hearing had been satisfied. The lower Court in the proceedings of 13th December, 2018 (see page 718 of Volume II of the Records), stated that it was through inadvertence that it adjourned the matter for hearing when it first came up before it. However, in a seeming volte face, the lower Court in the judgment delivered on the same day, castigated and censured the Appellant’s counsel for having misled it as a result of which plea was not taken before hearing commenced in the matter. It is, with

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respect, very lame to excoriate the Appellant’s counsel in this regard without a word being said of the Prosecution which applied for a date for hearing in respect of a matter in which plea had not been taken. One would have expected the lower Court to eat the humble pie and not seek to blame counsel for its failure to be the master of its records.

Hearing later started without fresh plea having been taken before Abang, J., and there is still nothing to show that an Amended Charge was ever filed. From the Records, it is effulgent that no plea was taken before Abang, J., before he took evidence, concluded hearing and adjourned the matter for judgment. The Appellant in his final written address raised the issue that there was no valid trial since plea was not taken before Abang, J. The lower Court, on the day fixed for judgment, invited counsel to address it on whether it was too late in the day to take the plea of the Appellant. See pages 717-719 of Volume II of the Records. The lower Court then held as follows at pages 719-720 of Volume II of the Records:
“On 18/5/2010 based on agreement of parties adjourned this matter to 28/6/2018 for

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trial because of agreement of parties the fresh plea of the defendant was not taken. It is my view that the fresh plea of the defendant can be taken before Judgment. It is not late in the proceedings to take the fresh plea of the defendant. The defendants were not misled as to the charge before the Court having pleaded not guilty to the charge before Sanni J., of the Federal High Court bench before the matter was re-assigned to this Court Sanni J., having been transferred to Sokoto Division of this Court. The Court Registrar shall read the amended charge dated 20/1/2010 to the defendants for the purpose of fresh plea of the defendant.
All steps taken by the Court before the fresh plea is taken were properly taken and remain lawful. I so hold.”

The plea of the defendants was then taken and immediately thereafter, the lower Court proceeded to deliver its judgment having held that all steps taken before plea was taken were properly taken and lawful. In further justification of the validity of the hearing conducted without the plea of the defendants having been taken, the lower Court in its judgment relying on ONWE vs. THE STATE (supra) held that it

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was a procedural mix-up and that the defendants having participated in the trial could no longer complain that a wrong procedure was adopted and that they had waived the non-compliance and were estopped from raising it at the address stage. (See pages 1020-1026 of Volume II of the Records).

Let me iterate that the law remains that without a valid arraignment, no trial in law would have commenced. Furthermore, that arraignment is not a matter of mere technicality but the very important initial step in the trial of a person in a criminal charge: OKEKE vs. THE STATE (supra). If the initial step in a criminal charge is for plea to be taken and then evidence adduced to prove the Charge, when was the evidence adduced in this matter seeing that the lower Court delivered judgment immediately after it took plea. (See page 721 of Volume II of the Records). It is important to underscore that it is not as though any plea whatsoever was taken before Abang, J., prior to the plea taken on the date of the judgment. No. There was no plea. When a matter is to start afresh before another Judge, fresh plea must first be taken by the new judge before proceeding any further in

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the matter: SANMABO vs. THE STATE (supra) at 316-317.
The lower Court ordered that everything done, prior to the plea taken on the date of judgment, was properly done. Now, the necessary steps to a valid arraignment as required by Section 215 of the Criminal Procedure Act are well settled beyond peradventure by a plethora of cases. It is the requirement of the law that for there to be a valid arraignment, the mandatory stipulations of Section 215 of the Criminal Procedure Act must be complied with, namely:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.
b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an 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.
d) The plea of the accused shall also be instantly recorded by the Court.

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The above requirements have been held to be very fundamental and renders a trial a nullity where they are not complied with. SeeKAJUBO vs. THE STATE (1988) 1 NWLR (PT 73) 721 at 732, EYOROKOROMO vs. THE STATE (1979) 6-9 SC 3, MADU vs. THE STATE (2012) 15 NWLR (PT 1329) 405 at 439, FRN vs. ABUBAKAR (2019) LPELR (46533) 1 at 7-16, HASSAN vs. FRN (2016) LPELR (42804) 1 at 22-24, MUSA vs. THE STATE (2016) LPELR (42812) 1 at 34-36, DAUDA vs. FRN (2017) LPELR (41910) 1 at 3-5, FRN vs. IWUAFOR (2019) LPELR (46901) 1 at 15-18, FRN vs. KAYODE (2019) LPELR (48997) 1 at 12-14 and 18 and AKEEM vs. THE STATE (2017) LPELR (42465) 1 at 35-36.
In FRN vs. IWUAFOR (supra), it was held that the proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused person’s constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before evidence was adduced, it constitutes a flagrant non-compliance with Section 215 of the Criminal Procedure Act, which impinges on

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the constitutional right of the accused person to a fair hearing. Such a trial is nullity. See HASSAN vs. FRN (supra) and DAUDA vs. FRN (supra). In MUSA vs. THE STATE (supra), the appellant therein was arraigned on a three count Charge, but the Records showed that her plea was not taken in respect of Count 2. The apex Court held that it was a fundamental vice which vitiated the trial.
In the instant case, the plea of the Appellant was taken by Abang, J., after adduction of evidence, address of counsel and after the matter had been adjourned for judgment. The law is clear that upon the matter being reassigned to Abang, J. after the transfer of Sani, J., the matter was to start de novo and a new plea ought to be first taken before Abang, J., before any further steps: ICHE vs. THE STATE (2013) LPELR (22035) 1 at 48-49 and SANMABO vs. THE STATE (supra). This was not done. The lower Court on the date of judgment took plea for the first time and ordered that all that had been done in the case was properly done. This seems to be anex post facto order of compliance with Section 215 of the Criminal Procedure Act. But can there be such an order of post factum

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compliance? I think not. A valid arraignment requires that first things be done first. The first thing being the taking of plea in the manner prescribed by Section 215 of the Criminal Procedure Act videDANIEL vs. FRN (2015) LPELR (24733) 1 at 27. The constitutional guarantees of fair hearing are fundamental. I have already highlighted that no Amended Charge was ever filed after the Prosecution was granted leave to amend the Charge. So there was no formal Charge before the lower Court for the joint trial of the two defendants. This seems to be a violation of the constitutional right of an accused person being informed promptly in the language he understands and in detail of the nature of the offence. The matter does not end there. The stipulation of Section 215 of the Criminal Procedure Act requires that the Court is to be satisfied that the Charge has been read over and explained to the accused person before evidence is led. In circumstances, where the charge was not read and plea taken, can the order of post factum compliance made by the lower Court relate back to before evidence was adduced? Can it relate back to the Court being satisfied of a state of

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affairs that did not exist? Definitely not! With due deference to the lower Court, the plea it took on the date fixed for judgment and the consequent regularizing of all that had transpired previously, did not, in the peculiar circumstances of this matter, remedy the non-compliance with the stipulations of Section 215 of the Criminal Procedure Act before it embarked on hearing in the Charge.
The Appellant has argued that the dictum of Eko, JSC in ONWE vs. THE STATE (supra) relied upon by the lower Court, to the effect that the procedural mix-up in plea not being taken before adduction of evidence was an acquiescence and a waiver of non-compliance with the strict procedure of taking plea to the Charge, is an obiter dictum. InONWE, there was no issue before the apex Court on whether the decision of this Court that Section 215 of the Criminal Procedure Act was not complied with by the trial Court is the correct decision. The sole issue before the apex Court in ONWE’s case was whether the order for retrial made by this Court was the proper order. I will not engage in the polemics of whether the said dictum of Eko JSC is an obiter dictum or not.

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However, I have noted that the case of ONWE vs. THE STATE (supra) was decided on 30th June, 2017. The cases of FRN vs. ABUBAKAR (supra), FRN vs. IWUAFOR (supra) and FRN vs. KAYODE (supra), where the apex Court reiterated the line of decisions that non-compliance with Section 215 of the Criminal Procedure Act renders the trial a nullity, were decided on 25th January, 2019, 21st February 2019 and 14th June, 2019 respectively. By the legal jurisprudential rule of posterior construction, the decisions which are later in time are to be preferred: CARDOSO vs. DANIEL (1986) 2 NWLR (PT 20) 1 at 38-39, SERIKI vs. SOLARU (1965) NMLR 1, IKEAKWU vs. NWANKPA (1967) NMLR 224, OBIUWEUBI vs. CBN (2011) LPELR (2185) 1 at 34 and MUJAKPERUO vs. AJOBENA (2014) LPELR (23264) 1 at 25. In the circumstances, I am unable to agree with the lower Court that the Appellant waived the procedural mix-up in his plea not being taken, by his participation in the trial. If as held by the lower Court there was such a waiver, why then did the lower Court take the plea for the first time on the date fixed for judgment? Without a doubt, there was no saving grace. The proceedings before the lower Court

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are caught by the abhorrent consequences of non-compliance with Section 215 of the Criminal Procedure Act and the attendant infringement of the right of hearing under Section 36 (6) of the 1999 Constitution which it occasioned. It was a nullity. It is as though there was never a trial and judgment.
It is compliance with Section 215 of the Criminal Procedure Act that gives the trial Court jurisdiction to try the defendant arraigned before it. Where the said provision has not been complied with before commencement of hearing and adduction of evidence, the trial Court has no jurisdiction to exercise: YAHAYA vs. THE STATE (supra). The concomitance of the lower Court, not having first taken plea before it started taking the testimony of the witnesses, is that it was acting without jurisdiction. The plea which the lower Court took on the date it delivered judgment, did not cure the defect of having acted without jurisdiction. The fact that the plea of the Appellant was not taken before Abang, J., started taking the testimony of the witnesses is a violation of the provisions of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution.

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The stipulations of Section 215 of the Criminal Procedure Act are mandatory. They do not give room for exercise of discretion. Failure to comply with the provisions automatically rendered the proceedings a nullity: LASISI vs. THE STATE (2013) LPELR (20715) 1 at 10-11. It was therefore not open to the lower Court, as it did, to take the plea of the Appellant just before it delivered judgment and to purport to regularize the feckless trial it had conducted in breach of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution. The lower Court had no such discretion to exercise. The plea which the lower Court took on the date it delivered judgment, did not cure the defect of having acted without jurisdiction. The entire proceedings was a waste of precious judicial time as the defect of having acted without jurisdiction is extrinsic to the adjudication.
The Respondent relied on OSAREREN vs. FRN (supra) to contend that the failure to file an Amended Charge, pursuant to the grant of leave, was not fatal. The facts of the OSAREREN case are distinguishable and will not aid the Respondent in the diacritical circumstances of this matter.

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In OSAREREN (see pages 5-7 of the Report), the prosecution filed an amended or fresh Charge (none was filed in this matter) and then made an informal oral application to amend the Charge. The trial Court did not formally grant the application, but the apex Court stated that the fact that the accused person pleaded to the Amended Charge, which was duly filed, was indicative that leave was obtained. In the instant case, there was no Amended Charge filed. The Respondent filed a formal application for leave to amend the Charge, annexing as an exhibit, the proposed amended Charge. The lower Court formally granted the leave sought, but the Respondent did not file any Amended Charge pursuant to the leave of Court which it was granted. So there was no Amended Charge filed, informing the Appellant in the language he understands and in detail of the nature of the offence he was being charged with as required by Section 36 (6) of the 1999 Constitution. The ratio in OSAREREN is therefore inapplicable and it cannot be pulled out of context and be given a general application since facts are the fountainhead of the law. See ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 31.

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Before I wrap up the consideration of this issue, let me state that I duly considered the Respondent’s invocation of the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act. The said presumption is a rebuttal presumption. It will not avail the Respondent where as in this case there is ample evidence that no Amended Charge was ever filed. It will also not avail the Respondent where the Record is translucent that the plea of the Appellant was not taken before adduction of evidence and that plea was only taken for the first time by Abang, J., on the date fixed for judgment. The presumption of regularity cannot avail where what was done at the trial Court cannot be said to be substantially regular in the face of the non-compliance with the mandatory provisions of Section 215 of the Criminal Procedure Act. See FRN vs. IWUAFOR (supra) at 11. The conflating of the foregoing is that this issue number one must be resolved in favour of the Appellant. The procedure adopted by the lower Court in the amendment of the charge, arraignment and trial of the Appellant is not valid in law. The trial at the lower Court is a nullity.

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Having arrived at the conclusion that the trial at the lower Court is a nullity, the effect is as if there has been no trial. The conviction of the Appellant must be set aside. But what then should be the proper order to make in the circumstances? Would it be to remit the matter to the lower Court for a fresh trial since there has been no prior trial known to law, the previous trial having been declared a nullity? A decision on whether a fresh trial is to be ordered is to be determined by the peculiar facts and circumstances of this matter. This makes it imperative to consider the complaint of the Appellant that the sentence imposed by the lower Court was excessive. So, we dovetail to consider issue number three as distilled by the Respondent.

ISSUE NUMBER THREE
Whether the terms of imprisonment the Appellant was sentenced to is excessive in law?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the sentence imposed by the lower Court upon conviction was excessive as the offence for which he was convicted was a misdemeanour. It was stated that the substantive offence, subject of the charge, prescribed a

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sentence of six months and that it was therefore wrong for the lower Court to have imposed a sentence of seven years imprisonment for conspiracy to commit the said offence, which being a misdemeanour, was punishable by six months imprisonment.

It was conclusively submitted that the Appellant was a first time offender and that as provided in Section 416 (2) (d) of the Administration of Criminal Justice Act, 2015, the lower Court ought not to pass the maximum sentence on the Appellant. The Court was urged to intervene and make the appropriate order or sentence.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent argues that the sentence imposed on the Appellant is not excessive and that an appellate Court can only interfere with the sentence imposed by a trial Court where it is manifestly excessive in the circumstances or wrong in principle. The cases of ADEYEYE vs. THE STATE (1968) 1 ALL NLR 239 at 241, SUMAILA vs. THE STATE (2012) LPELR-19724 and KARUMI vs. FRN (CA/L/233AC/2015) [2016] NGCA 46 (6 MAY 2016) were relied upon. It was opined that the punishment for the substantive offence was two years imprisonment, but that the lower Court

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sentenced the Appellant to six months imprisonment, which is not excessive.

It was posited that sentencing is at the discretion of the trial Court and that an Appellate Court would not alter the sentence imposed merely because it would have imposed a lesser sentence. The case of KARUMI vs. STATE (supra) was referred to on the factors which an Appellate Court must consider before altering the sentence imposed by the trial Court. It was conclusively submitted, without necessarily conceding, that if the appellate Court holds that the substantive offence is a misdemeanour, then the punishment imposed by the lower Court in respect of Count I of the Charge can be altered.

RESOLUTION
It is hornbook law that the sentence to be imposed upon conviction for an offence is at the discretion of the trial Court. But like all judicial discretions it must be exercised judicially and judiciously. An appellate Court is always reluctant to interfere with the way a trial judge exercised his discretion, but it would be compelled to do so if the discretion was wrongly exercised; if the exercise of discretion was tainted with some illegality or substantial

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irregularity; if there is a miscarriage of justice; or if it is in the interest of justice to interfere: OGUNSANYA vs. THE STATE (2011) 12 NWLR (PT 1261) 401 at 438.

In imposing sentence, the lower Court stated as follows at pages 1104-1106 of Volume II of the Records:
“The convicts are harbingers of evil. The story in this case has reflected a moral decay of the age we live in this earthly world. I have no doubt at all in my mind that the convicts were involved in the plot that led to PW1’s being shot and his leg amputated. The convicts planted thorns cannot expect to gather flower. They sowed the wind and must reap the wild wind. A drastic situation demands a drastic solution. A Court of law should enforce the law for the attainment of social engineering. It is by so doing that our desire as a nation to attain national rebirth and regeneration can be assured.
In the light of above, in respect of count I, I hereby sentence the 1st convict to 7 years imprisonment with effect from today. I sentence the 2nd convict to 7 years imprisonment with effect from today.
With respect to count II, I hereby sentence the 2nd convict to 6

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months imprisonment with effect from today.
With respect to count III, I hereby sentence the 1st convict to 6 months imprisonment with effect from today. I hereby sentence the 2nd convict to 6 months imprisonment with effect from today.
The terms of imprisonment shall run concurrently. I so hold.”

So, the Appellant, who is the “2nd convict” was sentenced to 7 years imprisonment in Count I which is for conspiracy and in respect of Counts II and III which are the substantive offences, he was sentenced to six months imprisonment on each count. I have already stated that no formal Amended Charge was filed, but the proposed Amended Charge annexed to the motion to amend the Charge (see pages 93-94 of Volume I of the Records) charges the Appellant in Count I with conspiracy to commit a felony punishable under Section 516 of the Criminal Code Act. Count II and III, which are the substantive offences, are charges for offences punishable under Section 3 (3) (b) of the Merchandise Marks Act.
In considering the contention under this issue, it is pertinent to set out the provisions of Sections 516 and 517 of the Criminal Code Act. They

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read:
“516. Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.”
“517. Any person who conspires with another to commit any offence which is not a felony, or to do any act in any part of the world, which if done in Nigeria would be an offence but not a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour and is liable to imprisonment for two years. The offender cannot be arrested without warrant.”
The above provisions prescribe different sentences for conspiracy to commit a felony and conspiracy to commit a misdemeanour. Furthermore, by Section 516 (reproduced above), where the punishment for

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the substantive offence is less than the seven years imprisonment prescribed therein, then the sentence for the conspiracy will be such lesser punishment.
Equally relevant is Section 3 (3) (b) of the Merchandise Marks Act, which prescribes the punishment for the substantive offences for which the Appellant was convicted as contained in the proposed Amended Charge. It stipulates as follows:
“(3) Every person who is guilty of an offence against this Act shall be liable –
(b) on summary conviction before a magistrate Court to imprisonment for a term of six months or to a fine of one hundred naira.”
Even though the proposed Amended Charge, which I iterate was never filed, preferred the substantive offences under Section 3 (3) (b) of the Merchandise Marks Act, the Appellant was prosecuted at the Federal High Court. For good order sake, Section 3 (3) (a) of the Merchandise Marks prescribes the punishment when an offender is convicted by a High Court and it prescribes a punishment for a term of imprisonment for two years or to a fine or to both. It seems to me that either way the maximum punishment for the substantive offences for

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which the Appellant was convicted is two years imprisonment, since from the terminology used in the provision, it is not a mandatory sentence that is to be imposed. See NIGERIA ARMY vs. IYELA (2008) 18 NWLR (PT. 1118) 115, TANKO vs. THE STATE (2009) 4 NWLR (PT 1131) 430 and AMOSHIMA vs. THE STATE (2011) 4 NWLR (PT 1268) 530.
The lower Court convicted the Appellant for conspiracy to commit a felony and sentenced him accordingly. As I have shown above, the maximum punishment for the substantive offence for which the Appellant was convicted is two years imprisonment. Section 2 of the Criminal Procedure Act assigns the following interpretation to the word “felony”: “felony means an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony.” See DOKUBO-ASARI vs. FRN (2007) LPELR (958) 1 at 19. Given that the substantive offences are punishable by two year imprisonment, which is not a felony, it was a wrong exercise of discretion, which is tainted with illegality, for the

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lower Court to have imposed the punishment of seven years imprisonment, being the punishment for conspiracy to commit a felony. Furthermore, Section 516 of the Criminal Code Act (earlier reproduced), stipulates that where the punishment for the substantive offence is less than seven years imprisonment prescribed in Section 516, then the sentence to be imposed for the conspiracy shall be such lesser punishment. I restate that the punishment for the substantive offence is six months imprisonment as set out in the proposed Amended Charge or at the most two years imprisonment. It was therefore a wrong exercise of discretion, tainted with illegality for the lower Court to have imposed a sentence for conspiracy, which is greater than the punishment for the substantive offence and which it actually imposed for the substantive offence. It is trite law that the sentence imposed by a Court must be in accordance with the relevant statute. A Court cannot impose a higher punishment than that prescribed for the offence. See AGBITI vs. THE NIGERIAN NAVY (2007) LPELR (4893) 1 and ONAH vs. FRN (2017) LPELR (43535) 1 at 21-22. It is therefore lucent that the sentence of seven

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years imprisonment imposed by the lower Court for the offence of conspiracy charged is wrong in principle in the light of the fact that the substantive offences are not felonies. The sentence is therefore manifestly excessive. An Appellate Court would in such circumstances interfere with the sentence imposed in the interest of justice in order to obviate the evident miscarriage of justice occasioned: ADEYEYE vs. THE STATE (supra), OMOKUWAJO vs. FRN (2013) LPELR (20184) 1 at 32 and ABIODUN vs. FRN (2018) LPELR (43838) 1 at 24-25.
In the circumstances, this issue number three must be resolved against the Respondent. The term of imprisonment imposed upon the Appellant upon his conviction for conspiracy is excessive and this Court must interfere with the said wrong exercise of discretion by the Lower Court since it is tainted with illegality. In the light of the fact that the lower Court sentenced the Appellant to six months imprisonment for the substantive offences, the punishment imposed by the lower Court for conspiracy to commit the said substantive offences is hereby reduced from the seven years imprisonment imposed by the lower Court to six months imprisonment.

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SUMMATION
As the harbour, where this judgment is to be berthed at the quays looms in sight, there still remains the question of the proper order to make in the light of the fact that the resolution of issue number one in this appeal is that the trial at the lower Court was a nullity for non-compliance with Section 215 of the Criminal Procedure Act. Being a nullity, it is as though there has not been a trial and that the Appellant has not been convicted. In such circumstances, there is the temptation and expectation for a fresh trial to be ordered so that a proper trial could be conducted. However, I am mindful of the manner of resolution of issue number three and the decision that the sentence imposed by the lower Court was manifestly excessive and a wrong exercise of discretion tainted with illegality. The sentence imposed for the conviction for conspiracy has accordingly been reduced from seven years imprisonment to six months imprisonment. The Appellant was convicted and sentenced on 13th December, 2018 and the imprisonment was to run from the said date. The effect is that the sentence as reduced would have already run its course as

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at the date of this judgment. Arguendo, even if the punishment for the substantive offences ought to be under Section 3 (3) (a) of the Merchandise Marks Act, since the Appellant was tried at a High Court, and not under Section 3 (3) (b) contained in the proposed Amended Charge, the maximum punishment would have been two years imprisonment and if that term had been imposed, the Appellant would have, as at the date of this judgment, served a substantial part of, if not the entire term. Taking these invariable facts into consideration, I do not think that an order for a fresh trial would be in the interest of justice. Since the Appellant has been in Prison (Correctional Centre) since 13th December, 2018 when the null and void judgment was delivered, and for a period up to the prescribed punishment for the offences, it will be oppressive to subject him to another trial. See MOHAMMED vs. THE STATE (2013) 5 NWLR (PT. 1347) 315 at 328, OGBOH vs. FRN (2002) 10 NWLR (PT. 774) 21 at 38, LORI vs. THE STATE (1980) 8-11 SC 81 and ABIEKE vs. THE STATE (1975) 9-11 SC 97. It is on account of the manner in which issue numbers one and three were resolved and the consequential

39

order made consequent thereupon, that it is no longer necessary to consider issue number two. This is because it has now become academic and immaterial whether there was sufficient evidence on which the lower Court could have convicted. The trial is a nullity and even at that the Appellant has already served most of the custodial term, if not all that he would have served, if there was sufficient evidence at which he could have been convicted in a proper and valid trial.

It will be a disservice to the law if I end this judgment without saying a word about the Respondent’s Brief of Argument. By Order 19 Rule 3 (6) (a) of the Court of Appeal Rules, 2016, every brief to be filed shall not exceed thirty-five (35) pages. The Respondent filed a sixty(60) page Respondent’s Brief in answer to the twenty-three (23) page Appellant’s Brief. The Respondent neither sought nor obtained the leave of Court to exceed the prescribed number of pages. At the hearing of the appeal, the Respondent’s counsel was unable to proffer any explanation as to why he had to exceed the stipulated number of pages. I had to go through the laborious task of reading

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the entire Respondent’s brief, as I am bound to do, and I must state that it was unnecessary for the Respondent to have reproduced the proposed Amended Charge verbatim ac literatim in the brief and to reproduce the various Sections of the statutes he referred to in extenso. The Records of Appeal are before the Court and what the Respondent did is expressly forbidden by Order 19 Rule 3 (5) of the Court of Appeal Rules. The submissions in the brief were unnecessarily repetitive and long-winded. The Rules provide for the filing of a brief which should be a succinct statement of the argument on the appeal. (Order 19 Rule 2 Court of Appeal Rules). The Respondent’s Brief is anything but what a brief should be. The duties of a judicial officer are very demanding, what with the clogged dockets of the Courts; to declare that by filing a brief of sixty (60) pages the Respondent is not helping the Court to expeditiously dispense justice will be litotes. The conduct of the Respondent’s counsel in this regard, with due deference, leaves much to be desired. My Lord, Augie, JSC, had spoken about to such conduct in the past. It was in the case of

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SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) 9 NWLR (PT. 1623) 138 at 159. This is what the learned jurist said:
“The appellants filed a 36-page brief of argument while the respondents filed a brief with 66 pages.
I must express my displeasure at this state of affairs where I have to go through those numbers of pages to resolve this appeal. The task of reading the briefs settled by counsel while preparing Judgments is arduous enough without making it more burdensome by trawling through a 66-page tightly-packed brief in the form of a book. If the aim is to emphasize or drum in points being made, then it is lost on me, as I find the task of reading the brief to be rather off-putting.”
I kowtow. Enough said. Since this is a criminal appeal, I gave the Respondent’s counsel the benefit of the doubt on the assumption that he did not think through the effect of a “60-page tightly-packed brief” on the adjudicatory process in the hope and belief that he would “go and sin no more”.

In a coda, this appeal is meritorious and it is hereby allowed. The trial of the Appellant having been declared a nullity, the judgment of the

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lower Court embodying the conviction and sentence of the Appellant is hereby set aside. For the reasons already stated, I decline to order a fresh trial. The Appellant is hereby discharged and he is to be, forthwith, released from the correctional facility where he is currently being held.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

EBIOWEI TOBI, J.C.A.: I have read in draft the leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA. and I am in intandem with his analysis and the conclusions reached on all the issues canvassed before this honourable Court. On my part, I only wish to add one or two thoughts of mine with respect to the effect of a trial starting de novo. This is in respect of Respondent counsel’s argument that the amended charge was duly filed and the plea of the Appellant taken before the previous presiding Judge of the lower Court. In furtherance of his argument, Respondent’s counsel also submitted that the mere fact that a fresh plea was not taken by the Judge who took over the hearing of the matter and concluded it did not

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make the trial a nullity, since no purpose would be served by taking the fresh plea. I beg to differ with the Respondent counsel on this point. Where a case is re-assigned, the consequence is that the hearing starts de novo. At this point, I will like to take a little excursion into what a trial de novo entails.
The Black law Dictionary, 8th Edition, 1999 on page 1544 defined trial de novo in these words:
“A new trial on the entire case… that is on both questions of fact and issues of law… Conducted as if there had been no trial in the first instance.”
See Kajubo vs. State (1988) 1 NWLR (Pt. 73) 721; Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465.
This Court per Onyenwnam JCA in Nana & Ors vs. Ningi & Ors (2018) LPELR-46399 (CA) expressed the meaning and implication of trial de novo on the previous proceeding. This is what His Lordship said:
“By Wex Legal Dictionary, DE NOVO means from the new. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a new trial by a different Tribunal.

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The Latin word means afresh, a new, beginning again. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: BLACK’S LAW DICTIONARY NINTH EDITION PAGES 1431 AND 1645; OMOSAYE V. THE STATE (2014) LPELR 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the judges findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of… This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of PHIPSON ON EVIDENCE 12TH EDITION AT PAGE 706 ARTICLE 704 (last paragraph) stated: “In new trials, the case must be reproved de novo, and the evidence and verdict given, and the judge’s findings at the first trial are inadmissible. This meaning and purport of a de novo trial can by no means be thwarted.”
The Apex Court drove home point in the case of Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & Ors (2007) 13 NWLR

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(Pt.1050) 1131 per Muhammad JSC at pages 31-32 of (2007) LPELR-698 (SC) held thus:
“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered… new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to re-litigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.”
See the case of Biri V. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G.
This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with

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approval, the dictum of Oputa, JSC in Kajubo V. The State (supra):
“The expressions “a new trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given.”
The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance.
See: Kajubo V. The State (supra). In 1978 this Court per Idigbe, JSC in the case of Fadiora V. Gbadebo (1978) NSCL (Vol.1) 121; (1978) 3 SC 219 had cause to make the following observation.
We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”
When a case starts de novo, the legal consequence or implication is that all the

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proceedings and decision or order of the previous Court is null and void and of no effect and does not bind the Court which is starting the case de novo. See Ngige vs. Obi (No 1) (2012) 1 NWLR (Pt. 1280) 40. In this respect, the decision of this Court in FBN Plc vs. Tsokwa (2004) 5 NWLR (Pt. 866) 271 is instructive This Court held:
“Where the hearing of a matter commences de novo, any action done or proceedings taken by or before the former Judge becomes abated and as such has no relevance. In the instant case, hearing commenced de novo before Audu, J. Any action done or proceedings taken before Bansi, J., therefore became abated and is of no relevance to the instant appeal. The trial by Audu, J., is a fresh trial independent of that by Bansi, J.”
I need not go in-depth into explanation as the authorities cited above are succinct on what a trial de novo is and its attendant consequence. It is therefore misconceived of learned counsel for the Respondent to argue that the failure of Abang. J., to take the plea of the Appellant, the plea having been taken by Sani. J., the previous Judge handling the matter will serve no useful purpose. As a matter

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of fact, it goes to the root of the lower Court hearing the matter.

​In the light of the foregoing and for the fuller reasons embedded in the leading judgment of my brother, Ugochukwu Anthony Ogakwu, JCA. I find that this appeal is meritorious and same is hereby allowed. I abide by the order of my learned brother.

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Appearances:

D.O. Obiorah, Esq. For Appellant(s)

Zebedee Arekhandia, Esq. For Respondent(s)