JEREMIAH JOSEPH v. THE STATE (2013)

JEREMIAH JOSEPH v. THE STATE

(2013)LCN/6095(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2013

CA/K/249/C/2011

RATIO

CRIMINAL LAW: ARRAIGNMENT: REQUIRED ELEMENTS OF A VALID ARRAIGNMENT

The required elements of a valid arraignment which must also coexist are:
(a) the accused must be present and unfettered before the trial court;
(b) the charge must be read and explained to him in the language he understands to the satisfaction of the court by the registrar or other officer of the court:
(c) the accused shall be called upon to plead; and
(d) his plea shall be instantly recorded by the court.PER DALHATU ADAMU, J.C.A. CFR

CRIMINAL LAW: ARRAIGNMENT: FAILURE TO ADHERE TO THE CONDITIONS OF A VALID ARRAIGNMENT

Failure to comply with any of the above conditions to the valid arraignment will render the subsequent trial a nullity. In the instant case there was no valid arraignment of the appellant in the trial court. Therefore the said trial or proceedings in that court were a nullity. The argument of the respondent that the accused had said that he knew why he was in court as a valid arraignment should not be so. As the charge was not read and explained to the accused person and nobody asked him to plead to it. At page 31 of the record where Mr. Nickaf said the case is for hearing what followed from the record is the examination of PW1. What is more offending in the proceedings is that the plea of the accused person was not instantly recorded by the court – See Temitope vs. State (2011) 6 NWLR (Pt.1243) 289. Solola vs. State (2005) 11 NWLR (Pt.937) 460; Amala vs. State (2004) 12 NWLR (Pt.1038) 30; Okeke vs. State (2003) 15 NWLR (Pt.842) 25. PER DALHATU ADAMU, J.C.A. CFR

CONSTITUTIONAL LAW: SECTION 36(6) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA: REQUIREMENT THAT AN ACCUSED BE INFORMED OF HIS OFFENCE IN THE LANGUAGE THAT HE UNDERSTANDS

PRESUMPTION OF REGULARITY: SECTION 168(1) OF THE EVIDENCE ACT LFN 2004
On the presumption of regularity under Section 168(1) of the Evidence Act which says every judicial or official act is shown to be done in a substantially regular manner, I would not work with or on the presumption rather than the factual situation that is shown on the initial record of proceedings. The record does not show that a plea of the accused has been taken by the trial court. If it is shown that the plea has been taken then I would invoke the presumption under Section 168(1) of the Evidence Act and say that all the requirements or conditions for arraignment have been satisfied or complied with.PER DALHATU ADAMU, J.C.A. CFR

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

JEREMIAH JOSEPH Appellant(s)

AND

THE STATE Respondent(s)

DALHATU ADAMU, J.C.A. CFR (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Kaduna State per Hon. Justice G.I. Kurada delivered on 28/7/2010. The appellant was charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision)Act (Chapter R.11) Laws of the Federation of Nigeria 2004. He was alleged to have conspired with 3 other accomplices to rob PW1 and PW2. After the presentation of the case, the accused/appellant entered a no-case submission which was overruled by the trial court. He was therefore called upon to enter his defence wherein he contended that there was insufficient evidence linking him to the offence. At the end of the trial the learned trial judge delivered judgment and convicted the appellant. He was subsequently sentenced to death by hanging or by firing squad until he is dead as the Governor of Kaduna state may direct. Aggrieved by the judgment, the appellant filed a notice of appeal against it. The notice of appeal is at page 57 of the record of proceedings. The appellant filed a brief of argument on 30/4/2012 and is deemed filed on 13/11/2012.

From his 2 (two) grounds of appeal in his notice of appeal (at page 57) the appellant formulated 2 (two) issues for determination of this appeal as follows: –
“Whether the trial of the accused is not a nullity by reason of the failure of the trial court to comply with the provisions of Section 187(1) of the Criminal Procedure Code (Ground 1).
Whether the trial court was right in overruling the no-case submission of the accused, thereby occasioning a miscarriage of justice (Ground 2).”

Although in the appellants brief the two issues were not numbered, they follow the sequence of the grounds of appeal and are hereby numbered as such.

On issue No.1, the provision of section 187(1) is reproduced as follows:-
“When the High Court is ready to commence trial, the accused shall appear or brought before it and the charges shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged or offences charged.”

It is submitted that this is the requirement of fair hearing which must be complied with in a criminal proceeding as failure to comply with the provision will render any form of criminal proceeding as a nullity. The above quoted provision is a mandatory requirement and must be complied with in a criminal proceeding. A failure to comply with it will render the proceedings a nullity – See Kajubo vs. The State (1988) 1 NWLR (Pt.73) P.721. It is further submitted that in order to determine whether an accused person was given a fair trial within a reasonable time, time only begins to run when he makes his plea.

Section 36(6)(a) of the 1999 Constitution requires that every person who is charged with a criminal offence shall be informed promptly in the language he understands in detail of the nature of the offence. It is submitted that the failure to carry out a proper arraignment of the appellant as well as the failure of the trial court to take the plea of the accused in line the strict provisions of Section 187 and Section 36(6)(a) of the Constitution will have the effect of rendering the conviction of the accused/appellant null and void ab initio.

In the instant appeal it is argued that the record of appeal shows without any doubt that the mandatory provisions of Section 187 of the Criminal Procedure Code and Section 36(6)(a) of the 1999 Constitution were not complied with at the trial of the appellant in the lower court. Indeed the record shows at p.31 thereof of what transpired on the first day the appellant was brought to court. It is submitted that what transpired in the court on that date and day cannot by any stretch of imagination be said to amount to compliance with the provisions of Section 187 of the Criminal Procedure Code and Section 36(6)(a) of the Constitution.

In the case of Kajubo vs. State (1988) 1 NWLR (Pt.73) at 721, the Supreme Court held that a proper arraignment consists of the following steps – that is the accused person shall be placed before the court unfettered, the charge shall be read over and explained 0to the accused person to his understanding and to the satisfaction of the court, the charge is to be read to the accused by an officer of the court and the accused shall be called upon to plead instantly to the charges read over to him. It is submitted in the appellants brief that failure to follow these steps would automatically amount to a violation of the accused persons constitutionally guaranteed fundamental right to a fair hearing under the 1999 Constitution – See Erehanure vs. State (1993) 5 NWLR (Pt.294) 392. It is submitted that fair hearing means giving equal opportunity to the parties to be heard in the case and conducting a trial according to all legal rules to ensure that justice is done to the parties – See Ntukidem vs. Oko (1986) 5 NWLR (Pt.45) 909; UBN Ltd. vs. Nwokolo (1995) 6 NWLR (Pt.400) 127; Epeto vs. Wanogho (2004) 18 NWLR (Pt.905) 394; Briefina Ltd. vs. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt.814) 540. The denial of party’s right to fair hearing means that the proceedings conducted in breach thereof amount to a nullity – See Adigun vs. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) where the Supreme Court held that. Also in Yahaya vs. State (2002) 3 NWLR (Pt.754) 299 at 303 the effect of failure to comply with the provision of Section 36(6)(a) and Section 187 of the Criminal Procedure/Code. Because of the decisive effect of the case of Yahaya vs. State (supra) the indulgence of this Court is sought to state briefly the facts of the case of Yahaya vs. State (supra). In that case the Supreme Court held that:
“It has been settled by this Court by a plethora of cases that once the provisions of Section 215 which is in pari materia with section 187 and those of the constitution referred to above the trial is rendered null and void ab initio. All the other matters that follow thereafter amount to an exercise in futility and are of no significance. ”

See also Urugbo vs. Una (2002) 16 NWLR (Pt.792) 200; Adio vs. State (1986) 6 SC 119; Durwode vs. State (2000) 15 NWLR (Pt.467) 487; Ogunye vs. State (1999) 5 NWLR (Pt.604) 548; Kalu vs. State (1998) 13 NWLR (Pt.583) 531 and Toby vs. State (2001) 10 NWLR (Pt.720) 23. In the light of the foregoing arguments we are urged in the appellants brief to set aside the trial and conviction of the appellant in the court below for failure to comply with the provision of Section 187 of the Criminal Procedure Code.

The respondents brief was filed on 3/4/2012, after stating the facts by way of introduction, the issues formulated by the appellants are adopted in the brief of the despondent. The twin issues formulated by the appellant are therefore adopted as per the grounds of appeal. In their reply to the 1st issue it is conceded that all criminal trials, must commence with a proper arraignment of the accused person whereby the charge which discloses the offence or offences must be read and explained to the accused person in a language he understands and he is thereafter called to plead whether he is guilty or not. This is provided in Section 187(1) of the Criminal Procedure Code. The provision of the section is reproduced. It is conceded that since the provision is mandatory, the failure to comply with it is a procedural irregularity that goes to the root of criminal trial. It is also conceded that the procedure for arraignment was set up by the Supreme Court in Kajubo vs. State (supra).

However, it is stated in the respondents brief that the failure or omission to take the plea of the accused/appellant did not affect the trial in this case or prejudice the appellant in any way. This is based on the clear and unequivocal assertion of the appellant at page 45 of the record where he stated that:-
“I know why I am in Court.”

This shows that the appellant understood the charge against him and why he was before the court.

Section 187(1) is not meant to work against the course of justice by rendering every trial a nullity simply because its provisions are not strictly followed. Rather it only seeks to make an accused person aware of the charge or charges made against him, so he can answer them properly and defend himself. In the instant case the admission by the appellant that he knows why he is in court is satisfactory enough to say that Section 187(1) has been complied with. To insist on anything more will amount to academic exercise which the courts frown at – See Torri vs. National Park Services of Nigeria (2011) 13 NWLR (Pt.1264) 387.

It is submitted further in the respondents brief that by section 168(1) of the Evidence Act, every judicial or official act is shown to be done in any manner substantially regular, it is presumed that the formal requisites for its validity were complied with. There is a presumption of regularity that the taking of plea was done according to Section 187(1). This presumption should be invoked in this case – See Idemudia vs. State (1999) 7 NWLR (Pt.10) 222 per Karibi-Whyte JSC.

We are urged to invoke the provision of presumption of regularity in this case as done by Karibi-Whyte in a case especially where there is counsel representing an accused person. In this case, it was contended that there was legal representation to the accused during the trial – See the record of proceedings.

The respondent discussed what is the proper consequential order or orders the appellate court can make when a trial is declared a nullity. Is it that of a discharge and acquittal or that of retrial? In the case of Umuolo vs. State (2003) 3 NWLR (Pt.808) 513 at 514, cited in the respondents brief, five principle which the court must consider in ordering a retrial were adumbrated. These are:-
“(A) where leaving aside the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantial case against the appellant.
(B) where there are no such special circumstances as would render it oppressive to put the appellant on trial a second time:
(C) that the offence or offences for which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial:
(D) where a refusal to make an order for retrial would occasion a greater miscarriage of justice, than to grant it: and
(E) the reason for declaring the trial a nullity and overall interest of justice are also relevant.”

The case on the above principle are cited in the brief. They include Akilu vs. State (1994) 7 NWLR (Pt.357) 504 and Abodunde & Ors. vs. The Queen (1959) 4 FSC 70.

It is submitted in the respondents brief that before the court can take any decision on whether or not to order a retrial, the evidence adduced at the trial court must be considered in the light of the above principles.

On the 1st principle, it is obvious from the evidence of PW1 and PW2 (at pages 31 – 33 of the record of proceedings) that a very substantial case of armed robbery was made out against the appellant. PW1 was able to identify the appellant as the 4th person in the group of 4 that came to attack and rob his family. Again PW1 told the court in clear terms how the appellant tried to attack him with a cutlass he was armed with and how he was eventually caught when he tried to escape.

Also PW2 positively identified the appellant as one of the men that attacked them at home. She also made it clear that he was armed with a machete with which he attacked her husband.

The brief went on that there exists no special circumstances as would render it oppressive to put the appellant on trial a second time. It may be argued that the appellant has stayed too long in prison before in invalid arraignment. This is answered with the dictum of Oputa JSC in Kajubo vs. State (supra).

On the 3rd principles, it is argued in the respondents brief that the offence with which the appellant is charged and convicted and the consequences are not trivial. By section 15(1) of the Robbery and Firearms (Special Provisions) Act the definition of robbery is reproduced in the brief. The appellant has been identified as one of the people who perpetrated the robbery. He was also armed and even actually used violence on one of the victims (i.e. PW1). In fact the seriousness and prevalence of this crime is what resulted in making a special law for it. The punishment for this offence is death and it is definitely not merely trivial. Therefore an order for retrial will enable the prosecution to establish its case on the merit. It is further submitted in the respondents brief that to order a retrial would serve interest of justice than to refuse it. Reference is made to Black’s Law Dictionary as “the fair and proper administration of law.” Therefore for justice to be done it must not only favour the accused person but the victims as well as the community as is described in the case of Josiah us. State (1985) 1 NWLR (Pt.1) 141 (per Oputa JSC). Therefore justice for the community is to order a retrial if the appellant’s first trial was not properly conducted. Section 137(1) of the Criminal Code does not intend to work contrary to justice on mere technicality by saying that non-compliance with its provisions will nullify a trial. We are finally urged to order a retrial in the matter.

I would like to pause here and state that I will treat the two issues of the appellant together. On the second issue of the appellant which is discussed under issue 2 (Ground 2), the issue is on whether the trial court was right in overruling the no case submission of the accused, thereby occasioning a miscarriage of justice. Under the issue is stated that it is well established law that where the prosecution fails to establish a prima facie case, the defence can make a no case submission and upon a successful plea thereof, the court has the duty to discharge the accused person. The provision of the relevant sections S.159(1) and Section 191(3) and (5) have been reproduced in the brief. The appellants brief continues that a submission that there is no case to answer will properly be made and upheld:
(a) where there has been no evidence to prove an essential element of the offence: and
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no tribunal could convict on it.

It is submitted that these conditions are not cumulative once anyone of them exists the court would discharge the accused person – See Ibeziako vs. C.O.P (1963) 1 All NLR 61. It is further submitted that to make a prima facie case against the accused person, the prosecution must prove the essential ingredients of the offence with which the accused is charged. In the instant case the appellant was charged with armed robbery. In the case of Musa vs. State (2005) 2 FWLR (Pt.261) 343 at page 358 – 359, the Supreme Court stated the elements of the offence of armed robbery to be: the act of stealing with use of actual violence or threat of actual violence; the accused should be armed with dangerous weapon and that he was in company of at least one other person – See Bello vs. State (2007) 10 NWLR (Pt.1043) 564 at 588 – 589 cited in the appellants brief.

In the instant case the brief continues the evidence adduced by the prosecution did not establish a prima facie case of armed robbery against the accused person. There are many material inconsistencies on the scuffle that took place in the house of the victim and it was held in C & C Construction Co. Ltd Vs. Okhai (2003) 18 NWLR (Pt.851) 79 that where the testimonies of witnesses have reached or attained a height of insipid or impotent exaggeration it should be disregarded as mere and treated with ignominy – See Pats Acholonu JSC’s dictum. The prosecution also did not tender any weapon as exhibit including the cutlass said to be used as offensive weapon – See Abele vs. Tiv Native Authority (1965) NMLR 425. As no reason was tendered for not tendering these exhibits, we are respectfully urged to invoke the provision of Section 167(d) of the Evidence Act and hold that they would if produced be unfavourable to the prosecution case – Babalola vs. Badmus (1998) 11 NWLR (Pt.572) 16. Finally it is stated in the appellants brief that we ought to have discharged and acquitted the appellant and we are urged to hold so.

In the respondent’s brief, all what the appellant brief said on Section 159(1) and the two conditions for upholding a submission of no case is admitted. However it is submitted that from the dictum of Alagoa JCA (as he then was) in the case of Sowemimo vs. State (2012) 2 NWLR (Pt.1284) 400, the essential elements in the offence of armed robbery have been established by the evidence of PW1 and PW2. PW1 gave evidence that when he got home he met two men who accosted him and he was shouting for help. The two men were armed and a scuffle ensued when he resisted the two men. As he was going further in his house a fourth person came up with his cutlass and he held the cutlass in the scuffle and he identified the 4th person with the cutlass as the accused person. PW2 gave evidence that the accused person was caught with a cutlass that he used in hitting the head of PW1. The contention of the appellant that it was impossible for the PW1 (who was fasting) to have overpowered the two men who attacked him was regarded in the respondents brief as untrue as the PW1 did not say that he overpowered the two men. On the various inconsistencies in the evidence of the prosecution witnesses, that is said to be immaterial as in the case of Musa vs. State (2012) 3 NWLR (Pt.1286) 89, where the court held that such inconsistencies to be or to lead to an acquittal must be on material points before they will affect a conviction. They do not touch on the ingredients of the offence of armed robbery which is the offence charged in this case. On the issue of the exhibits not tendered as canvassed in the appellant’s brief – which the confessional statements and a cutlass, the respondent’s brief said that they were only referred to in the evidence of PW1 and PW2 as the weapon with which the accused was armed. The prosecution duty is to prove the case beyond reasonable doubt and not beyond all shadows of doubt. The prosecution has done that in this case with the help of uncontroverted testimonies of PW1 and PW2. Finally we are urged to hold that the inconsistencies are not on material issues rather the prosecution has proved its case against the appellant beyond reasonable doubt. We are asked to dismiss the appeal or order a retrial of this case as this would serve the greater case of justice.

On the first issue and to resolve it I would like to reiterate the requirements of the valid arraignment. The required elements of a valid arraignment which must also coexist are:
(a) the accused must be present and unfettered before the trial court;
(b) the charge must be read and explained to him in the language he understands to the satisfaction of the court by the registrar or other officer of the court:
(c) the accused shall be called upon to plead; and
(d) his plea shall be instantly recorded by the court.

Also by Section 36(6) of the 1999 Constitution, every person charged with a criminal offence shall be entitled to be informed promptly in the language he understands and in details the nature of the offence with which he is charged. All these are mandatory statutory requirements relating to a criminal trial. Where a trial court proceeds as in the instant case to try an accused person without strictly complying with the provision of Section 159(1) of the CPC – i.e. Criminal Procedure Code and Section 36(6) of the 1999 Constitution, the trial would be declared a nullity – See Kajubo vs. State (supra): Eyokoroma vs. State (1979) 6 – 7 SC 3 and Dada vs. State (2013) 2 NWLR (Pt.1337) 59.
On the presumption of regularity under Section 168(1) of the Evidence Act which says every judicial or official act is shown to be done in a substantially regular manner, I would not work with or on the presumption rather than the factual situation that is shown on the initial record of proceedings. The record does not show that a plea of the accused has been taken by the trial court. If it is shown that the plea has been taken then I would invoke the presumption under Section 168(1) of the Evidence Act and say that all the requirements or conditions for arraignment have been satisfied or complied with. As it is and in the absence of the plea from the record, I will hold that the requirements or conditions for an arraignment have not been satisfied. I will not therefore invoke the provision of Section 168(1) of the Evidence Act to hold that they have been so satisfied or complied with.

Therefore the trial in the instant case should be declared a nullity and I so declare it.

I do not hesitate to, as a result of my declaration of the trial a nullity and in view of what the respondent has said at the end of his brief whereby he urges us to order a retrial and what the appellant advocated, about the retrial, I order a retrial before a court of coordinate and competent jurisdiction – High Court of Kaduna State by another judge. The appeal is therefore allowed.

With my decision upholding the non compliance with the mandatory requirements relating to the proper arraignment of the appellant before the trial court, I will not belabour myself in resolving the second issue on the no-case submission. It suffices to say that the last request in the conclusion of the respondent’s brief says that an order of retrial would serve greater course or interest of justice in this matter. I will therefore abide by that request and order a retrial of the case before another judge in the jurisdiction.

THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I had the opportunity of reading in advance the draft copy of this judgment prepared by my learned brother, Adamu, J.C.A., CFR, and I agree that non-compliance with the mandatory requirements of section 187(1) of the Criminal Procedure Code rendered the proceedings at the lower Court a nullity.

There is nothing in the record of this appeal indicating that the Appellant was arraigned at all in accordance with the manner prescribed by Section 187(1) of the said Code. There is no record of the charge being read out to the Appellant, let alone the Appellant pleading thereto. The Appellant only said “I know why I am in Court” during his testimony as D.W.1 after the prosecution had produced its witnesses who testified in his presence and to his hearing, but not during any other procedure.

I must, however, observe in passing that the grounds of appeal in the Appellant’s Notice of Appeal have no particulars of the errors complained of, though, it was not raised as an issue before this Court. Be that as it may, I, too allow this appeal and, I remit the Criminal case of armed robbery which carries death sentence to the Kaduna State High Court for re-trial by another Judge.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Dalhatu Adamu, JCA. His Lordship considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions. I wish to make some comments for emphasis.

One of the complaints of the Appellant in this appeal is that the lower Court failed to comply with the provisions of section 187(1) of the Criminal Procedure Code. The section provides:
“When the High Court is ready to commence trial, the accused shall appear or brought before it and the charges shall be read out in court and explained to him and he shall be asked whether he is guilty of the offence charged or offences charged.”

This complaint of the Appellant touches on question of whether or not there was a valid arraignment before he was tried by the lower Court. An arraignment involves the taking of the plea of an accused defendant. The plea is an accused defendant’s formal response of guilty of not guilty or no contest to a criminal charge. It is the means by which an accused defendant joins issues with the State on a criminal charge.

It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi-Whyte, JSC stated that:
“A valid trial is posited on the fact of a valid arraignment. An arraignment as rationem ponere, that is calling on the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in section 36(6)(a) and the provisions of section 215 of the Criminal Procedure Law.”

Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that ‘every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.’ The Courts have, in the interpretation of the laws on criminal prosecution, laid down some essential requirements that must be satisfied for there to be a valid arraignment and these are (a) the defendant 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; (c) it must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the defendant is entitled by law to service of a copy of the information the court is satisfied that he has in fact not been duly served – Kajubo Vs State (1988) 1 NWLR (Pt 73) 721., Olabode Vs State (2009) 11 NWLR (Pt.1152) 254, Temitope Vs State (2011) 6 NWLR (Pt.1243) 289 and Olowoyo Vs State (2012) 17 NWLR (Pt 1329) 346.

These requirements are to ensure that an accused person gets a fair trial and he is not railroaded into jail. It is good practice for trial Courts to specifically record that “the charge was read and fully explained to the accused defendant to the satisfaction of the court” before then recording his plea thereto – Kajubo Vs State supra. In the instant case, there is nothing on the records of proceedings to show that the charge against the Appellant was read over and explained to him in the language he understood by an officer of the Court to the satisfaction of the Court and/or that the Appellant was called upon to plead to the charge. There was clear non-compliance with the requirements for a valid arraignment. Counsel to the Respondent submitted in his written address that this omission should not be treated as affecting the trial or as prejudicial to the Appellant because in course of his recorded testimony the Appellant stated thus: “I know why I am in Court” and that this presupposes that the Appellant understood the charge against him. Counsel further submitted, relying on the provision of section 168(1) of the Evidence Act dealing with presumption of regularity of official and judicial acts, that, notwithstanding the non-recording of the arraignment, this Court should presume that the Appellant was validly arraigned from the fact that the Appellant was represented by Counsel at the trial.

The requirements for a valid arraignment are not merely cosmetic or mere semantics. They are provisions considered necessary to ensure that the accused defendant understands and appreciates what is being alleged against him, to which he is required to make a plea. The requirements cannot be waived, ignored or presumed. They are very important and mandatory and there must be clear evidence on the records that they were fully or substantially complied with. To underscore the inviolability of the requirements of a valid arraignment, the Courts have been very strict in their consideration of the question of non-compliance. Thus, it has been held that 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 and not at any other time in the course of trial and that where it is shown that it did not take place at the commencement of trial but at some other time in the course of the proceedings, it is invalid – Barmo Vs State (2000) 1 NWLR (Pt 641) 424, Dada Vs State (2013) 2 NWLR (Pt.1337) 59. It has also been held that where there are more than one accused defendant, they must be arraigned separately as there is no provision for block pleas under the law – Dike Vs State (1996) 5 NWLR (Pt 450) 553.

For the presumption of regularity referred to by the Counsel to the Respondent to come into play, there must be evidence on record that the trial Court at least took some steps in the process of arraignment. Where this occurs, then compliance with other steps can be presumed – Peter Vs State (1997) 12 NWLR (Pt 531) 1. Where there is no such evidence, the presumption cannot come into play – Olowoyo Vs State supra at page 371. In the instant case, there was no evidence on record that the lower Court took any step on the arraignment of the Appellant. There was thus no valid arraignment of the Appellant in the instant case.

Arraignment is not a matter of technicality and it is a very important initial step in the trial of a person on a criminal charge. It is very critical and foundational to the successful prosecution and possible conviction of an accused defendant. A criminal trial anchored on a faulty arraignment process is tantamount to erecting a house on a faulty and sandy foundation and it will invariably collapse no matter how well the trial was conducted. Thus, the Courts have held that failure to comply with the conditions for a valid arraignment renders the whole trial a nullity – Kajubo Vs State supra, Yahaya Vs State (2002) 3 NWLR (Pt 754) 289, Okeke Vs State (2003) 15 NWLR (Pt 842) 25, Amala Vs State (2004) 12 NWLR (Pt 1038) 30, Solola Vs State (2005) 11 NWLR (Pt.937) 460, Lufadeju Vs Johnson (2007) 8 NWLR (Pt 1037) 535 and Dada Vs State supra. The trial of the Appellant before the lower Court was thus a nullity.

Now, what is an appellate Court to do where it declares the trial of a criminal charge a nullity? The law, as rightly made out in the Respondent’s brief of argument, is that the appellate Court is empowered to order a retrial and should take the following principles into consideration in deciding whether or not to do so:
a. where leaving aside the error or irregularity in the proceedings, the evidence taken as a whole discloses a substantial case against the appellant;
b. where there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;
c. where the offence or offences for which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial;
d. where refusal to make an order for retrial would occasion a greater miscarriage of justice than to grant it; and
e. the reason for declaring the trial a nullity and the overall interest are also relevant.

See the cases of Abodundu Vs The Queen (1959) 4 FSC 70, Kajubo Vs State supra, and Umuolo Vs State (2003) 3 NWLR (Pt 808) 513. The Appellant in this case was charged with armed robbery which is punishable with death under the provisions of the Robbery and Firearms (Special Provisions) Act, Cap 11, Laws of Federation 2004. Applying the above stated principles to the facts of this case as made out on the record of proceedings, I agree entirely that this is a proper case for this Court to order a retrial.

It is for these reasons, and the more detailed reasons contained in the lead judgment, that I also allow this appeal and order that this case be remitted to the Chief Judge of Kaduna State for assignment to a Judge for retrial.

Appearances

A. Akeredolu (Mrs) with Mansurat Abdulrasheed (Miss)For Appellant

AND

A.T. Kehinde with B.O. AmawuFor Respondent