IKECHUKWU NVENE v. FEDERAL REPUBLIC OF NIGERIA
(2016)LCN/8577(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of May, 2016
CA/E/363C/2013
RATIO
CRIMINAL PROCEEDING: ESSENCE OF ARRAIGNMENT AND TAKING OF PLEA
Arraignment is a mandatory initial step before the commencement of Court proceedings where the plea of an accused to a charge is taken before the Court. The plea of an accused is so fundamental to the jurisdiction of the Court that when the accused person has not pleaded to the charge, the Court cannot assume jurisdiction over the matter. See Nwafor Okegbu v The State (1979) 11 S.C. 1. The issue of arraignment in criminal proceedings goes to the root of that proceedings. Its importance is such that non-compliance with the rules of arraignment renders such trial a nullity. The implication of which is that a fresh trial would have to be conducted by the Courts. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL PROCEEDING: REQUIREMENTS OF A VALID ARRAIGNMENT
The requirements of a valid arraignment are as follows:
a) the accused must be placed before the court unfettered unless the Court shall see cause otherwise to order.
b) The charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court in the language he understands.
c) The accused must then be called upon to plead thereto unless there exists any valid reason to do otherwise.
d) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as an objection to want of service where the accused is entitled by law to service of copy of the information and the court is satisfied that he has infact not been duly served therewith. See Lufadeju v Johnson (2007) 3 SCNJ 197.
The above stated requirements of the law are mandatory and must therefore be strictly complied with in all criminal trials. Failure to satisfy any or all of them will render the whole trial defective and null and void. See Yusuf v The State (2011) 7 SCNJ 136, Toby v State [2001] 10 NWLR Pt.70 Pg.23 at 33, Olayinka v State (2007) 4 SCNJ 59, Ogunye v The State (1999) 4 S.C Pt.1 Pg.30, Kajubo v The State (1988) 1 NWLR Pt.73 Pg.721. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL PROCEDURE: EFFECT OF FAILURE TO RECORD THAT A CHARGE WAS READ TO THE DEFENDANT IN A LANGUAGE HE UNDERSTANDS
However, failure to record that the charge was read to the appellant in a language which he understands will not nullify the trial. See Cyril Udeh v The State (1999) 7 NWLR Pt.609 Pg.1, Sunday Amala v State (2004) 12 NWLR Pt.888 Pg.520, Akpan v State (1994) 9 NWLR Pt. 368 Pg.347. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: PRESUMPTION OF REGULARITY FOR JUDICIAL OR OFFICIAL ACT
The law of presumption is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed its formal requirements have been complied with until the contrary is proved. The latin maxim puts it SUCCINCTIY thus, OMNIA PRAE SUMUNTUR RITE SOLEMNITER ESSE ACTA DONEC PROBETUR IN CONTMRIUM. [all things are presumed to have been legitimately done, until the contrary is proved.] See Sumanya Issah Torri v National Park Services of Nigeria (2011) 7 SCNJ 17; (2011) 13 NWLR Pt.1264 Pg. 152, Section 168 of the Evidence Act 2011. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW: RIGHT OF AN ACCUSED TO DEFEND HIMSELF OR BY COUNSEL
The circumstances under which an accused person has a right to defend himself in person or by counsel of his choice were clearly stated by the Supreme Court in TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR- 8142(SC) as follows:
“The right to defend oneself either in person or by counsel of one’s choice is available only to an accused who pleads not guilty to a charge thereby challenging the prosecution to prove its case beyond reasonable doubt. Where an accused person pleads guilty to a charge there is no right to defend nothing to be defended at all. The charge against appellant does not carry death sentence to which the law requires that the trial judge ought to enter a plea of not guilty even though an accused pleads guilty. In the instant case, the offences charged carry terms of imprisonment and or fine.
The same thing applies to the argument that appellant ought to have been given adequate time and facility to prepare for his defence which as stated earlier, does not exist as appellant admitted the charge by pleading guilty thereto.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
IKECHUKWU NVENE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice D. V. Agishi of the Federal High Court sitting in Enugu delivered on 4/2/2013 wherein His Lordship convicted the Appellant of dealing without lawful authority in Indian hemp and sentenced him to six years imprisonment. The facts that led to this appeal are as follows:
By a charge dated 20/12/2012, the appellant was arraigned before the trial Court for the offence of dealing without lawful authority in Indian Hemp. The appellant pleaded guilty to the one-count charge. To prove its case the prosecution called one witness (P.W.1) and tendered five exhibits. The gist of the case is that on the 22nd of November, 2012, P.W.1 led a team of NDLEA Officers to Obiagu village of Ozalla Nkanu East Local Government Area of Enugu State where a search was conducted in the appellant’s shop and some wraps of a substance which was later tested and found to be Cannabis Sativa were recovered. At the trial, P.W.1 tendered five exhibits [Exh 1-5] to prove its case. At the close of trial, the learned trial judge convicted the appellant for dealing
1
without lawful authority in Indian Hemp and sentenced him to 6 years imprisonment accordingly.
Dissatisfied with the judgment of the trial Court, the appellant by a Notice of Appeal filed on 2/5/2013 containing 2 grounds of appeal has brought this appeal. Records were transmitted on 10/7/2013. Appellant’s brief was filed on 23/09/2014, deemed filed on 18/3/2015. Reply brief was filed on 11/2/2016. Amended Notice of Appeal was filed on 2/10/2014 and deemed filed on 18/3/2015. Respondent’s brief was filed on 29/4/2075 and deemed filed on 26/1/2016.
In the appellant’s brief settled by C.C. Ukor and the Respondent’s brief settled by Obeta P. Afum, the two issues identified by both parties for determination are as follows:
1. Whether there was a valid arraignment of the appellant for the offence he was alleged to have committed and whether he was properly convicted and sentenced by the Lower Court.
2. Whether by the facts and circumstances of the case, the appellant was given opportunity to secure the services of a legal practitioner to assist him in the case against him by the prosecution before conviction and sentence.
?After careful
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perusal of both briefs, the arguments of counsel and the issues raised by both parties, I have found that the technical points before us are:
1. Whether the Learned trial judge conducted the arraignment of the appellant properly in accordance with the rules of procedure.
2. Whether absence of legal representation for the appellant in this case during arraignment and trial is fatal to the case of the respondent.
Learned Appellant’s counsel submitted that arraignment is an initial step where an accused is called to take his plea before a Court after there has been an indictment. Counsel argued that this must be in strict compliance with the four mandatory provisions for arraignment in Section 215 of the Criminal Procedure Act where it states that where a person is to be tried upon a charge or information, he should be placed before the Court unfettered unless the Court sees it fit to do otherwise and the charge or information for which he is before the Court must be read and explained to him by the registrar to the satisfaction of the Court only then can the person be called to take his plea instantly. Counsel submitted further that the
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mandatory requirements must co-exist and its compliance must be reflected in the records of the Court He argued that the trial Court has not included anything in its records to show that Section 215 of the Criminal Procedure Act was duly complied with. Counsel cited Godwin Josiah v The State (1985) SC 406 at 418.
Counsel argued that in the purported arraignment of the appellant who had no legal representation, there was nothing to indicate that the appellant understood the charge that was read to him before his plea was taken and that the appellant ought to be informed by the Court of his right to defend himself personally or through a counsel of his choice. Counsel argued further that even though the appellant pleaded guilty to the charge which was read and explained to him, he could not have understood the import of the charge against him because he lacked legal representation. He submitted that the mandatory nature of Section 215 of the Criminal Procedure Act and Section 36 (6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are such that the conditions laid down in Section 215 CPA and Section 36(6)(a)are not for formality
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sake but to ensure fair trial of the appellant. Counsel posited that the Court is duty bound to secure compliance with the conditions as laid down in Section 215 and Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria as stated above. Counsel cited Sunday Kajubo v The State (1988) 1 NWLR (Pt 73) 72.
Counsel submitted that the appellant is entitled to adequate time and facilities for the preparation of his defence and that the appellant was denied this right by the Lower Court as a result of which the appellant answered questions which were obtained involuntarily from him by officials of the NDLEA. Counsel referred us to pages 11-13 of the records. Counsel argued that the appellant mistakenly pleaded to the charge, consequently, the trial at the Lower Court has occasioned a miscarriage of justice and should therefore be declared a nullity. Counsel cited Section 36 (6) (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 218 of the Criminal Procedure Act; Umaru v. State (2009) 8 NWLR (Pt.1142), Chukwu v FRN (2013) 12 NWLR (Pt 1369) 488 at 491.
Counsel urged this Court to order a retrial in
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the interest of justice.
Learned Respondent’s counsel submitted that there was a valid arraignment of the appellant and that in relation to Section 215 of the Criminal Procedure Act, the appellant was given the opportunity to secure legal representation before he was properly convicted and sentenced.
Counsel argued that the appellant admitted that he spoke English, consequently, the charge was read and explained to him in English after which the appellant pleaded guilty to the one-count charge. Counsel argued further that the appellant had been charged to Court and convicted twice before the instant case therefore the Court may presume that he understood the charge against him. The fact that he pleaded guilty after the charge was read and explained to him goes further to show that the appellant understood the offence for which he was being charged before he pleaded to it. Counsel posited that the appellant is literate and wrote Exh. NDL3 himself and the appellant’s allocutus further reveals that the appellant knew and understood everything that transpired in Court before he took his plea. Counsel referred to Exhibit NDL 3.
?Counsel argued that
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the issue at hand is a question of law. He submitted that the right to a counsel is not available to an appellant who pleads guilty to a noncapital offence. Counsel further argued that where the appellant has pleaded guilty to an offence that does not carry death penalty, it is not mandatory that he understands the charge but it is desirable. Counsel cited Torri v National Park Services of Nigeria (2011) 201 LRCN Pt.1 at Pg.24 para A-F.
Counsel urged this Court to dismiss the appeal.
RESOLUTION
ISSUE ONE:
Whether the Learned trial judge conducted the arraignment of the appellant properly in accordance with the rules of procedure.
Arraignment is a mandatory initial step before the commencement of Court proceedings where the plea of an accused to a charge is taken before the Court. The plea of an accused is so fundamental to the jurisdiction of the Court that when the accused person has not pleaded to the charge, the Court cannot assume jurisdiction over the matter. See Nwafor Okegbu v The State (1979) 11 S.C. 1. The issue of arraignment in criminal proceedings goes to the root of that proceedings. Its importance is such that non-compliance
7
with the rules of arraignment renders such trial a nullity. The implication of which is that a fresh trial would have to be conducted by the Courts.
The requirements of a valid arraignment are as follows:
a) the accused must be placed before the court unfettered unless the Court shall see cause otherwise to order.
b) The charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court in the language he understands.
c) The accused must then be called upon to plead thereto unless there exists any valid reason to do otherwise.
d) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as an objection to want of service where the accused is entitled by law to service of copy of the information and the court is satisfied that he has infact not been duly served therewith. See Lufadeju v Johnson (2007) 3 SCNJ 197.
The above stated requirements of the law are mandatory and must therefore be strictly complied with in all criminal trials. Failure to satisfy any or all of them will render the whole trial
8
defective and null and void. See Yusuf v The State (2011) 7 SCNJ 136, Toby v State [2001] 10 NWLR Pt.70 Pg.23 at 33, Olayinka v State (2007) 4 SCNJ 59, Ogunye v The State (1999) 4 S.C Pt.1 Pg.30, Kajubo v The State (1988) 1 NWLR Pt.73 Pg.721.
In the instant case, (a), (b) and (c) were duly complied with by the trial Court during the arraignment of the appellant. After prosecuting counsel sought that the charge be read to the appellant the appellant was asked if he understood and spoke English to which he admitted that he understood and spoke English. The charge then read and explained to him in English Language. When it was evident that he understood the charge which was read and explained to him, he took his plea on page 9 of the records of the Court as follows:
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
ON FRIDAY THE 1ST DAY OF FEBRUARY, 2013
BEFORE HON JUSTICE D. V. AGISHI
JUDGE
SUIT NO: FHC/EN/CR/72/2012
BETWEEN
THE FEDERAL REPUBLIC OF NIGERIA ?.COMPLAINANT
AND
IKECHUKWU NVENE…. ACCUSED
Coram: D.V. Agishi Judge
Ikechukwu
9
Nvene: Accused speaks English
Accused Person: Present
M. C Onyiaji prosecuting
Mr Onyiaji: matter is for plea and I seek that the charge be read to the Accused Person.
Court: Charge read and explained to the Accused to enable him take plea.
Accused Plea: I am guilty”
Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
6) Every person 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.
An arraignment consists of charging the accused and reading over and explaining the charge to him in the language he understands to the satisfaction of the Court and then followed with a plea. It is of great importance that the arraignment of an accused must comply with the provisions of Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federation of Nigeria. The only reasonable inference from the nature of the plea proceeding, as recorded in this case, is that the charge was read to the appellant in the language he understood and that the learned trial judge
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was satisfied with the explanation of the charge to him (the appellant) before he pleaded guilty. The essence of this requirement is to see that the appellant did not plead in error or in agitation. In the absence of anything to the contrary, the trial Court must be given the benefit of doubt that it could spare no efforts in seeing to the strict compliance with the provisions of the law. See Emmanuel Olabode v State (2009) 5 SCNJ 98; (2009) 11 NWLR Pt. 1152 Pg.254
Based on the evidence before us on page 9 of the record, I am of the view that the arraignment was properly done and that the appellant understood the import of the charge before pleading guilty to it.
Learned appellant’s counsel argued that in the records of the Court, there was nothing to indicate that the appellant, to the satisfaction of the Court, understood the charge before his plea was taken. I would like to say at this point that failure of the learned trial judge to add the phrase:
?it was done to the satisfaction of the Court”
to the phrase,
‘charge read and explained to the accused to enable him take his plea?
does not render the plea defective
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so long as the Court records that the charge was fully read and explained to the appellant in the language he understands.
However, failure to record that the charge was read to the appellant in a language which he understands will not nullify the trial. See Cyril Udeh v The State (1999) 7 NWLR Pt.609 Pg.1, Sunday Amala v State (2004) 12 NWLR Pt.888 Pg.520, Akpan v State (1994) 9 NWLR Pt. 368 Pg.347. There is no doubt that the plea of the appellant was properly taken during his arraignment and the subsequent trial is valid.
ISSUE TWO:
Whether absence of legal representation for the appellant during arraignment is fatal to the case of the respondent
On this issue, Learned Appellant’s Counsel argued that upon pleading ‘guilty’ to the charge, the appellant could not have understood the charge against him since he was not represented by a legal practitioner. He argued further that although on page 9 of the record, the learned trial judge recorded that the charge was read and explained to the appellant to enable him take his plea, the fact that the appellant had no legal representation before the Court, he could not have understood the import of
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the charge. Counsel cited Section 36 (6) (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Umaru v State (2009) 8 NWLR Pt.1142.
Counsel argued that an accused person who appears in Court without any legal representation is entitled to be informed by the Court of his right to defend himself personally or through a counsel of his choice.
Counsel argued further that the appellant was not aware of the detailed proceedings of the proceedings and that the appellant was not guilty of the offence which he was alleged to have committed.
In reply to this issue, Learned Respondent’s Counsel submitted that the Lower Court followed due process as cited in Section 215 of the Criminal procedure Act. The appellant admitted that he spoke English, the charge was therefore read and explained to him in English Language thereafter he pleaded guilty to the charge. Counsel posited that after the Court took the appellant’s plea, the matter was adjourned till 4/2/2013, the appellant had the opportunity to change his plea if he so wanted or secure the services of a legal practitioner before 4/2/2013.
?It is important to state firstly,
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that the absence of the appellant’s counsel during the taking of his plea does not render the trial void. Section 36(6)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) gives the appellant the right to defend himself in person or by a counsel of his choice. It is desirable that the appellant is legally represented but not mandatory. Legal representation is mandatory only where the appellant has been charged with a capital offence punishable with death. The Court ought to satisfy itself that the appellant understood perfectly the charge for which he is before the Court. The trial judge may do this by putting questions to the appellant to ensure that he knows what he is doing and understands the importance of the plea he is about to take. SeeSection 352 of the Criminal Procedure Act; Josiah v The State (1985) NWLR pt. 1 Pg.125, Effiom v State (1995) 1 NWLR pt.373 pg.507.
There is no doubt that the arraignment and trial of the appellant before the trial Court is both a judicial and an official act it was carried out in a substantially regular manner and the appellant has failed to rebut this presumption before this Court by
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showing that he did not understand the procedure employed during his trial or that he was denied legal representation or opportunity to present a defence. The right to fair hearing it should be noted, is an extreme fundamental right in our Constitution. It is an indispensable right in any fair trial. It is an inalienable right of an accused. It is however, not an abstract principle. It entails a trial conducted in accordance with the rules of natural justice. Natural justice, in its broad sense, is justice done in circumstances which are just equitable and impartial. It is one ingrained in that procedure followed in determination of a case and not in the correctness of the decision. See State v Onagoruwa [1992] 2 NWLR Pt.221 pg.33; Kim v The State [1992] 4 NWLR pt.233 pg. 17.
The law of presumption is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed its formal requirements have been complied with until the contrary is proved. The latin maxim puts it SUCCINCTIY thus, OMNIA PRAE SUMUNTUR RITE SOLEMNITER ESSE ACTA DONEC PROBETUR IN CONTMRIUM. [all things are presumed to have been legitimately
15
done, until the contrary is proved.] See Sumanya Issah Torri v National Park Services of Nigeria (2011) 7 SCNJ 17; (2011) 13 NWLR Pt.1264 Pg. 152, Section 168 of the Evidence Act 2011.
To say that the appellant ought to have been informed and educated on the right to elect whether to defend the charge himself or to secure the services of a counsel of his choice, when he understood the charge and pleaded guilty thereto, is not only irrelevant, it is hypothetical and academic. Having pleaded guilty to the charge, he had thrown in the towel and it becomes purely speculative to think of the appellant’s rights to defend the charge himself or to elect a counsel of his choice. SeeSumanya Issah Torri v National Park Services of Nigeria (supra).
?In the instant case, the appellant pleaded guilty to the offence of dealing without lawful authority in Indian hemp on 1st February, 2013 and his matter was adjourned immediately after his plea was taken till 4th February, 2013. It is my honest belief that if the appellant had any interest in securing the services of a lawyer or changing his plea, he could have done so on or before the next date of adjournment of the
16
case. In the light of the fore going, I hereby find that the absence of counsel during arraignment and trial of the appellant at the trial Court is not fatal to the case of the respondent.
?This appeal is without merit and it fails. The judgment of Hon. Justice D. V. Agishi of the Federal High Court sitting in Enugu delivered on 4/2/2013 in No:FHC/EN/CR/72/2012 is hereby affirmed. Appeal Dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity of reading in draft, the lead judgment of my learned brother, Hon. Justice Helen Moronkeji Ogunwumiju, JCA. I agree entirely with the same and most respectfully adopt the reasoning and conclusion reached therein as mine. I have nothing gainful to add thereto. In this regard, I also dismiss this appeal, since it has not even a semblance of merit. I endorse the consequential orders made in the said lead judgment of my learned brother, Ogunwumiju, JCA.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had read before now the draft of the judgment delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU JCA, I am in complete agreement with the reasoning and conclusions therein. I
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also hold that this appeal lacks merit and should be dismissed. The circumstances under which an accused person has a right to defend himself in person or by counsel of his choice were clearly stated by the Supreme Court in TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR- 8142(SC) as follows:
“The right to defend oneself either in person or by counsel of one’s choice is available only to an accused who pleads not guilty to a charge thereby challenging the prosecution to prove its case beyond reasonable doubt. Where an accused person pleads guilty to a charge there is no right to defend nothing to be defended at all. The charge against appellant does not carry death sentence to which the law requires that the trial judge ought to enter a plea of not guilty even though an accused pleads guilty. In the instant case, the offences charged carry terms of imprisonment and or fine.
The same thing applies to the argument that appellant ought to have been given adequate time and facility to prepare for his defence which as stated earlier, does not exist as appellant admitted the charge by pleading guilty thereto.”
?The appellant was not denied
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the right to be represented by counsel, if he had the desire to be represented by a counsel he could have engaged a counsel of his choice after the adjournment of 1st February, 2013. In the light of the foregoing, I too dismiss the appeal and abide by the consequential order made in the lead judgment.
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Appearances:
C. C. UkorFor Appellant(s)
Obeta P. AfumFor Respondent(s)
Appearances
C. C. UkorFor Appellant
AND
Obeta P. AfumFor Respondent
