FRIDAY OMAGE v. COMMISSIONER OF POLICE OGUN STATE (2019)

FRIDAY OMAGE v. COMMISSIONER OF POLICE OGUN STATE

(2019)LCN/12968(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IB/164/2018

RATIO

ARRAIGNMENT AND PLEA TAKING ARE JURISDICTIONAL ISSUES

RECORDS OF APPEAL: THE APPELLANT HAS THE DUTY TO ENSURE THAT IT IS MADE AVAILABLE IN COURT
In the case of Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592, it was held that the parties to an appeal especially the Appellant have a responsibility to ensure that a whole packaged record of appeal which is really worth that name is the only one made available to the Appeal Court.
And in Agbetoba v. L.S.E.C. (1991) 4 NWLR (pt. 188) 673 at 696, Olatawura JSC (as he then was) stated thus:
I now come to a procedural matter which has always been glossed over by the counsel; the settlement of the record of appeal. It is a rule of Court designed to enable Appellate Court deal with matters which are relevant to the appeal expeditiously. Experience has shown that settlement of records are left to clerks forgetting that only those who conducted the case during the trial and bearing in mind the judgment of the trial Court, will know the relevant papers that should be embodied in the records of appeal.”PER ABUBAKAR MAHMUD TALBA, J.C.A.

ARRAIGNMENT: REQUIREMENT MANDATORY

It is settled law that the requirement for arraignment is not optional but mandatory. Failure to observe the procedure would render the proceedings a nullity ab-initio. In Udo v. State (2006) All FWLR (pt. 337) 456, the Supreme Court reiterated the requirements of a valid arraignment as follows:
1. That the accused must be placed before the Court unfettered.
2. 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.
3. The accused shall then be called upon to plead instantly to the charge, unless there is a valid reason not to do so. See also Kalu v. State (1998) 13 NWLR (pt. 583) 55.
The three requirements of a valid arraignment must co-exist and failure to comply with any one of them will render the trial a nullity. See Amachukwu v. FRN (2007) All FWLR (pt. 380) 1578.PER ABUBAKAR MAHMUD TALBA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

FRIDAY OMAGE Appellant(s)

AND

COMM. OF POLICE OGUN STATE Respondent(s)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Ogun State in its appellate jurisdiction. The Appellant was charged before the Magistrate Court Abeokuta on a five count charge for various offences including conspiracy, impersonation, stealing and forgery. At the trial the prosecution called four (4) witnesses and tendered Exhibits. Upon the close of the prosecutions case on the 19th October, 2015, the Appellant testified in his defence. The second accused person is deceased. At the end of the trial and in a Judgment delivered on the 21st day of April, 2016 the Appellant was convicted by the Chief Magistrate on counts 2 and 4 for stealing and impersonation. The Appellant was sentenced to six months imprisonment or N20, 000:00 fine on each of the two counts.

Being dissatisfied with the Judgment the Appellant appealed to the High Court Abeokuta Ogun State. The appeal was heard by the High Court which delivered its Judgment on the 13th December, 2017. In the said Judgment the High Court affirmed the conviction and sentence passed on the Appellant on

counts 2 and 4. The Appellant have now appealed to this Court against the Judgment of the Appellate High Court.

The prosecutions case is that the Appellant was erroneously promoted to the rank of an inspector by the Force Headquarters Abuja in 2009. After the purported promotion exercise the Force Headquarters in June 2009 issued a signal to all police formations across the country to the effect that those who were erroneously promoted should not wear their rank and/or be accorded the privileges of the new ranks. While the persons affected by the signal issued obeyed interviewing the appropriate authority and withdrew from parading the new ranks as stated in the signal. However the Appellant defied the instructions in the signal and continued to parade himself as an inspector and receiving arrears of salary totalling the sum of N381,504:00K from November 2009 till July, 2010. After a thorough investigation the Appellant was put on orderly room trial and he was found guilty and dismissed from the police force. Then he was charged to Court.

The Appellants case at the trial Court was that in 2009 he was among the Sergeants promoted to the

rank of Inspector by a signal sent to Ogun State Command/Formation and that his name amongst others was also published in the police publication ?New Dawn?. The Appellant admitted receiving salary and arrears of N68,250:00k as an Inspector and wearing the uniform from June 2009 till July 2010. The Appellant however denied receiving any information withdrawing his promotion as an inspector.

When the case came up for hearing on the 14th day of January, 2019, the Court registrar informed the Court that the Respondent was served with a hearing notice on the 10th January, 2019. The Respondent was not in Court and there was no legal representation. The Appellant?s Counsel Idowu Adepoju informed the Court that on the 30th day of October, 2018 this Court granted leave to hear this appeal on the Appellant?s brief alone. The Respondent did not file any process, i.e Respondent?s brief after being served with the Appellant?s brief.

The Appellants counsel submitted that this appeal is against the Judgment of Ogun State High Court delivered on 13/12/17. The Judgment is at pages 103 ? 114 of the record.

The Appellant?s notice of appeal filed on 12/3/18 is at pages 115 – 120 of the record. The record of appeal was transmitted on 18/4/2018. The Appellant?s brief was filed on 21/5/18. The learned counsel adopted the Appellant?s brief and he urged the Court to allow the appeal.

The Appellant filed 7 (Seven) grounds of appeal in the notice of appeal. (See pages 115 ? 118 of the record). In the Appellants brief two (2) issues were formulated for determination thus:
(1) Whether the decision of the lower Appellate Court affirming the conviction and sentence of the Appellant including the said conviction and sentence are not a nullity or liable to be set aside having regard to the record of appeal before the said lower Appellate Court which does not show any arraignment of the Appellant and competent charge upon which he could be tried (Grounds 1 and 3).
(2) Whether the guilt of the Appellant was proved beyond reasonable doubt (Grounds 3, 4, 5, 6 and 7).

Before I delve into the issues, it is necessary to point out some typographical and grammatical error in the issues raised by the Appellant Counsel.

These are:
1. Whether the decision of the lower Appellate Court affirming the conviction and sentence of the Appellate, including the said conviction and sentence,
2. Whether the gilt of the Appellant was proved beyond reasonable Court.
It is our duty to point out such error so that counsel will take correction. It is expected that before a counsel file any process in Court, he must have read through the process and ensure that there are no mistakes or error. Although nobody can claim to be perfect but Tobi JCA (as he then was) admonished counsel on the need to master the art of brief writing in the case of Amadi v. Essien (1994) 7 NWLR (pt 354) 106 at 112. He stated that:
Brief writing is a very major aspect of Appellate trial which requires utmost skill. It is an act which must be imbibed by any counsel interested or involved in Appellate practice. It is a function which needs great skill and expertise and which can only be acquired by a very serious application of a highly organized professional mind.?

Resolution of issues
On the first issue the main thrust of the argument in the Appellant?s brief is that the conviction

and sentence of the Appellant is liable to be set aside having regard to the record of appeal before the lower Appellate Court, which does not show any arraignment of the Appellant and a competent charge upon which he could be tried. The learned counsel referred to pages 1 ? 50 of the record.

He submitted further that the learned Appellate Judge observed that the record before him was incomplete when his lordship said:
On perusal of the records filed before this Court in Appeal No: AB/3CA/2017 I observe that the records is incomplete.”
See page 51 of the record.

The learned counsel also submitted that the additional record of appeal contained at pages 53 ? 75 of the record of appeal was compiled pursuant to the order of his Lordship. He then submitted that there is nothing in either the record to show any arraignment of the Appellant or any competent charge. The additional record is the Judgment and no more. The charge sheet upon which the Appellant was tried and convicted is contained at page 4 of the records. The purported charge sheet does not have a signature page, let alone being signed by any one.

The learned counsel concluded that in the absence of any fact on record showing that the Appellant was arraigned as statutorily required and that the charge sheet was signed by a competent officer, all judicial pronouncements made against the Appellant on the charge are a nullity. And this can be raised at anytime being a jurisdictional issue. He urged the Court to resolve issue one in favour of the Appellant and allow the appeal.

I have observed that throughout his submission the learned counsel has failed, neglected and/or refused to cite any case law or statute to support his argument. When an Accused/Appellant has a counsel of his own choice in accordance with our Constitution, the counsel briefed by the Accused/Appellant himself is expected to put his best and to display that part of his knowledge acquired through special training. In the performance of his duty as an advocate, a counsel owes both the Court and his client a duty to bring out all relevant authorities in support of the case of his client. He has an abiding duty to bring out his best in advocacy and this he can do by citing to the Court relevant authorities to beef up or embellish the

facts. The learned counsel has failed in his duty to help the Court as he should and ought to be in adaptation of law to Justice.

The issue of arraignment and taking of plea of an accused person is a very fundamental stage of any criminal proceedings. It is no doubt a jurisdictional issue. The issue was not raised at the lower Appellate Court by the Appellant. There can be no doubt that the question of jurisdiction being radically fundamental, can be raised at any stage of proceedings and even for the first time in a Court of last resort, such as the Supreme Court. See Management Enterprises Ltd & Anor v. Jonathan Otusanya (1987) 2 NWLR (pt. 55) 179; Galadima v. Tambai (2000) 6 S.C.N.J 203; Bronik Motors v. Wema Bank Ltd (1983) 1 S.C.N.LR 296 and Jeric Ltd v. Union Bank (2000) 12 S.C.N.J 193.
Since this issue was never raised in either of the two Courts below i.e the trial Court and the lower appellate Court. And it is being raised for the first time in this Court. Now in view of the fact that the issue relates to the jurisdiction of the trial Court and as the question of jurisdiction can be raised at any stage of the proceedings even on appeal,

I believe that the issue must be determined. See Nig. Eng. Works v. Denap Ltd(2001) 12 SCNJ 283.
In considering the issue, I have looked at the records of the trial Court, page 4 contain the charge sheet, Charge No: MA/460C/2013
Between
COMMISSIONER OF POLICE
VS.
1. FRIDAY OMAGE ?M? 42 YEARS
2. PETER OGBANJI ?M? 27 YEARS
There is no page containing the signature of the police officer who is in charge of the case as required by Section 78 (b) of the Criminal Procedure Act. The signature page was omitted from the record of appeal. The rules of this Court provides that it is the responsibility of the Registrar of the lower Court to compile and transmit records of appeal to the Court of Appeal after the filing of notice of appeal. But if the registrar has failed and or neglected to compile and transmit the record of appeal, it shall become mandatory for the Appellant to compile and transmit the record of appeal. In the case of Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592, it was held that the parties to an appeal especially the Appellant have a responsibility to ensure that a whole packaged record

of appeal which is really worth that name is the only one made available to the Appeal Court.
And in Agbetoba v. L.S.E.C. (1991) 4 NWLR (pt. 188) 673 at 696, Olatawura JSC (as he then was) stated thus:
I now come to a procedural matter which has always been glossed over by the counsel; the settlement of the record of appeal. It is a rule of Court designed to enable Appellate Court deal with matters which are relevant to the appeal expeditiously. Experience has shown that settlement of records are left to clerks forgetting that only those who conducted the case during the trial and bearing in mind the judgment of the trial Court, will know the relevant papers that should be embodied in the records of appeal.”
In this instant case, there is a valid charge and there is the presumption that the charge was duly signed by the police officer who is in charge of the case as required by law. The failure to attach the signature page will not lead to miscarriage of justice. The essential thing is for the charge to be read and explained to the accused and his plea be taken. There was a competent charge before the trial Court.

The question now is whether the Appellant was properly arraigned before the trial magistrate. It is the contention of the Appellants counsel that there is nothing in the records to show that the Appellant was arraigned before the commencement of the trial. He referred to pages 1-50 of the records.
It is settled law that the requirement for arraignment is not optional but mandatory. Failure to observe the procedure would render the proceedings a nullity ab-initio. In Udo v. State (2006) All FWLR (pt. 337) 456, the Supreme Court reiterated the requirements of a valid arraignment as follows:
1. That the accused must be placed before the Court unfettered.
2. 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.
3. The accused shall then be called upon to plead instantly to the charge, unless there is a valid reason not to do so. See also Kalu v. State (1998) 13 NWLR (pt. 583) 55.
The three requirements of a valid arraignment must co-exist and failure to comply with any one of them will render the trial a nullity. See Amachukwu v. FRN (2007) All FWLR (pt. 380) 1578.

Section 215 of the Criminal Procedure law provides:
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 thereto unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.?
The provision of Section 215 of the Criminal Procedure Law has been further reinforced by Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in order to guarantee the fair hearing and trial of the accused person. It provides:
36 (6) Every person who is charged with a criminal offence shall be entitled to:
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence.

Trial commenced on the 20th day of June, 2014 before M.A. Akinyemi Esq., Senior Magistrate I. There is nothing to show that on that date the charge was read to the Appellant and his plea was taken. See page 5 of the record. The trial commenced with testimony of PW1. The prosecution closed its case on the 10th day of October, 2015. And up to the time the prosecution closed its case there is nothing on record to show that the plea of the Appellant was taken. On the 27th day of January, 2016 the defence opened its case with the Appellant who testified in his own defence. Same date the defence closed its case. Throughout the entire proceedings the charge was not read and explained to the Appellant in the language he understands nor was his plea taken. In other words, there was no valid arraignment. Arraignment is a very fundamental stage of any criminal proceedings. In Edibo v. State (2007) All FWLR (pt. 384) 192, the Supreme Court held as follows:
The arraignment and taking of the plea of the accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court; the charge explained to his understanding and pleads thereto in person and even not through his counsel.

It is a very important and fundamental aspect of any criminal proceedings and that underscores the need for strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted without the plea of the accused properly taken is a nullity.
And in Nwafor Okegbu v. State (1979) 11 SC 1, the Supreme Court per Irikefe JSC (as he then was) stated thus:
It is only when an accused pleads either guilty or not guilty as the case may be that issues are joined in criminal trial, and until this happens, he is technically outside the pale of the Court?s jurisdiction.

The law requires that before the commencement of hearing the charge or information must be read and explained to the accused and his plea be taken. That is the point when the Court would assume jurisdiction to try the matter. The trial Court was in error to have assumed jurisdiction without compliance with Section 215 of the Criminal Procedure Law and Section 36 (6) (a) of the 1999 Constitution.
For an arraignment to be valid, it must be evident from the records of the Court that it took place before the commencement of trial.

See Joseph v. State (2014) 1 NWLR (pt. 1387) 33. The lower appellate Court could not determine this issue; hence it was not raised even though the records of appeal from the trial Court was compiled and transmitted to the lower appellate Court. The failure to comply with the mandatory requirement of a valid arraignment as provided for by Section 215 of the Criminal Procedure law will render the whole trial a nullity. See Effiom v. State (1995) 1 NWLR (pt. 373) 507; Erekanure v. The State (1993) 5 NWLR (pt. 294) 385 and Kajubo v. The State (1988) 1 NWLR (pt. 73) 721.
I agree with the submission of the Appellant?s counsel that the trial is a nullity and the decision of the lower appellate Court, affirming the conviction and sentence of the Appellant is also a nullity.

The first issue is resolved in favour of the Appellant. The trial of the Appellant is hereby declared a nullity. The judgment of the trial Court delivered on the 21st day of April, 2016 is hereby set aside. Equally the judgment of the lower appellate Court delivered on the 13th day of December, 2017 is hereby set aside.

Having resolved the first issue in favour of the Appellant, it is sufficient to dispose of the appeal without considering the second issue.

Now in view of the fact that leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the Appellant. The offences for which the Appellant was convicted are not merely trivial. There is no any special circumstance that would render it oppressive to put the Appellant on trial a second time. And to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it. Now upon being guided by the above facts and the principle laid down by the Supreme Court in Abodundu & 4 Ors v. The Queen (1959) 4 FSC 70 and elaborated upon in Kajubo v. The State (supra), I make an order for a retrial of the appellant by another magistrate in the Abeokuta Magisterial District, as the present trial was voided due to non-compliance with the mandatory provisions of Section 215 Criminal Procedure Law of Ogun State and Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 199 (as amended). Orders made accordingly. The appeal succeeds. It is allowed.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother ABUBARKAR MAHMUD TALBA, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.

I am also of the view that there is merit in the appeal and it is allowed by me. I abide by the consequential order made in the said lead Judgment.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment delivered by my learned brother, A. M. Talba, JCA.

I agree with my learned brother that the Record of Appeal does not disclose any charge upon which the Appellant was tried and convicted. The charge being defective, it also means that there could not have been a valid arraignment and without a valid arraignment, there cannot be a valid trial. That being so, the trial Magistrate did not have the jurisdiction to try the Appellant on such invalid charge and the Court below erred in affirming such trial and conviction.

I accordingly agree with my learned brother that this appeal succeeds. It is hereby allowed. I abide by the consequential orders made in the lead judgment.

Appearances:

Idowu Adepeju
For Appellant(s)

Respondent Counsel was absentFor Respondent(s)

Appearances

Idowu AdepejuFor Appellant

AND

Respondent Counsel was absentFor Respondent