KAYODE DADA & ANOR. V. THE STATE KAYODE DADA & ANOR V. THE STATE
(2012)LCN/5793(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of March, 2012
CA/I/190C/2006
RATIO
CRIMINAL PROCEDURE: WHETHER STRICT COMPLIANCE WITH A MANDATORY STATUTORY REQUIREMENT RELATING TO THE PROCEDURE IN A CRIMINAL TRIAL IS A PRE-REQUISITE FOR A VALID TRIAL
It has been held that strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite for a valid trial and where a trial Judge proceeded to try the accused without strictly complying with the provisions of Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the 1999 Constitution (as amended) the trial would be declared a nullity by an appellate court. See: KAJUBO VS. THE STATE (1988) 1 NWLR (73) 721; EYOKOROMO VS. THE STATE (1929) 6 – 9 S9 3,
It was held in OKEKE VS. THE STATE (2003) 15 NWLR (842) 25 that arraignment is not a matter of mere technicality. It is a very important initial step in the trial of a person on a criminal charge. Failure to comply with any of the conditions for a valid arraignment would render the whole trial a nullity. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
WORDS AND PHRASES: MEANING OF A PLEA
Plea is defined as “An accused person’s formal response of “guilty”, “not guilty” or “no contest’ to a criminal charge” BLACK’S LAW DICTIONARY, EIGHT EDITION, page 1189. In ordinary English Language, plea is an accused person’s “answer to a charge in a court of law, especially one stating that he or she is guilty or not guilty” – ENCARTA WORLD, ENGLISH DICTIONARY, page 1446. PER MOORE A. A. ADUMEIN. J.C.A
CRIMINAL LAW: ELEMENTS OF A VALID ARRAIGNMENT
In the case of ALONGE TEMITOPE V. THE STATE (2011) 6 NWLR (Pt. 1243) 289 at 305, this court, per NGWUTA, JCA (as he then was, now JSC) stated the elements of a valid arraignment and the necessity to comply with all the requirements. His Lordship, NGWUTA JCA (as he then was) explained position of the law as follows;
“In law a valid arraignment consists of the following elements which must co-exist.
- The accused must be present and unfettered before the trial court.
- The charge must be read and explained to him in the language he understands to the satisfaction of the court by the registrar of the court.
- The accused shall be called upon to plead and
- His plea shall be instantly recorded by the court.
Failure to comply with any of the four conditions will render the subsequent trial a nullity. See Solola v.
State (2005) 11 NWLR (Pt. 937) 460 SC; Lufadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 535 SC. Amalav. State (2004) 12 NWLR (Pt. 1038) 30 SC.”The mandatory nature of the above requirement of a valid arraignment is evident from S.36(6)(a) of the constitution of the Federal Republic of Nigeria (1999).
Non-compliance with any of the requirements will vitiate the trial and render it a nullity. See Dibie v. State (2007) 9 NWLR (Pt. 1038) 30 SC.” PER MOORE A. A. ADUMEIN. J.C.A
Before Their Lordships
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUNJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEINJustice of The Court of Appeal of Nigeria
Between
1. KAYODE DADA
2. ADESINA BOLAJIAppellant(s)
AND
THE STATERespondent(s)
CHINWE E. IYIZOBA J.C.A.(Delivering the Leading Judgment): The appellants, Kayode Dada and Adesina Bolaji were arraigned before Ogunniyi J. of Ilesa Judicial Division of the Osun State High Court on a one count charge of the murder of one Gabriel Umukoro behind Obetu Saw Mill, Ilesa, an offence punishable under Section 319(1) of the Criminal Code Cap. 30 Volume II Laws of Oyo State of Nigeria, 1978 as applicable in Osun State.
The facts of the case briefly are as follows: – The 1st appellant was a staff of Nigerian Prisons Ilesa. He had a girlfriend named Joy Omosaye. Joy was also a girlfriend to the deceased Gabriel Umukoro. The 2nd appellant and one Gbenga who absconded were at the time of the offence inmates at the Ilesa prison. Part of the duties of the 1st appellant was to go with these two inmates to collect vegetables for cooking meals for the prisoners. On one of such trips, on the 4th of June 1996, the appellants and Gbenga lured the deceased from Joy’s house where he had come to visit to a lonely spot behind Obetu Saw Mill Ilesa where they allegedly murdered him. The deceased was initially reported as a missing person. Eventually, through the confessional statements of the appellants and the assistance of the 1st appellant, the decomposed corpse of the deceased was recovered from a shallow grave behind Obetu Saw Mills, Ilesa. At the trial the prosecution called five witnesses while each of the accused persons gave evidence on his own behalf. Soon after PW1 commenced her evidence, the trial judge realized that the plea of the accused persons had not been taken. Their pleas were thereupon taken and PW1 continued her evidence. In a trial within a trial the appellants unsuccessfully challenged the voluntariness of the confessional statements. At the conclusion of trial, the learned trial judge delivered judgment on 6/4/2006, convicted the appellants of the offence of murder and sentenced them to death by hanging. The appellants being dissatisfied with the judgment filed their separate notices of appeal dated 30/5/06. On realizing that the notices of appeal were defective, instead of applying for amendment of the notices, the appellants with the leave of the court, granted on 7/7/10 filed fresh notices of appeal out of time. The separate Notices of appeal filed by the appellants contain identical and similar grounds of appeal, hence the filing of a single brief of argument on behalf of the two appellants. Out of the five grounds of appeal filed, the appellants formulated three issues for determination viz:
1. Whether the entire proceedings and the trial at the High Court were not a nullity when the pleas of the appellants were not taken before the commencement of the trial in breach of Section 215 of the Criminal procedure Laws of Oyo State applicable in Osun State at the relevant time and contrary to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
2. Whether the High Court was not wrong in admitting the confessional statements of the appellants and placing heavy reliance on same.
3. Whether the prosecution has proved its case against the appellants with legally admissible evidence beyond reasonable doubt as required by law.
At the hearing of the appeal on 1/2/12, the Court in the absence of objection by the appellants granted the application of the respondent to amend his brief of argument to incorporate a notice of preliminary objection against the appeal. The appellant indicated readiness to go on with the appeal and to be allowed to respond to the preliminary objection orally. Thereupon the respondent moved the notice of preliminary objection which was argued at pages 2-4 of his brief of argument. The gravamen of the preliminary objection is that the appeal is incompetent because the record of appeal on which the appeal was based and argued is in respect of an abandoned appeal. Learned counsel for the respondent Salawu Bamidele Esq. Snr. State Counsel, Ministry of Justice Osun State submitted that the appellants by their motion on notice dated 29/4/10 only prayed “for extension of time within which to appeal” against the judgment of Osun State High Court, delivered on 6th April, 2006 and contended in the affidavit in support, that their initial Notices of appeal, upon which the appeal was entered as CA/I/190/2006 is incompetent as the only ground of appeal stated therein is invalid, and the appellants were thus on 7/7/10 granted leave to file and serve their respective Notices of Appeal within 7 days. But the appellants in their brief of argument, counsel contended used the record of proceedings in appeal No CA/I/190/2006 which had been abandoned as incompetent. Counsel argued that if the appellants had by their motion sought the leave of court to amend their earlier Notice of Appeal, such relief if granted would have allowed them to use the record of proceedings. The position now, counsel contented is that there is no valid record of appeal in the present appeal as required by the rules of the court. Counsel further argued that the appellants’ brief of argument filed on the record of an abandoned appeal amounts to putting the cart before the horse and is in gross violation of the rules of the court the depriving the court the court of jurisdiction to entertain the appeal. Counsel called in aid the case of Odofin & Anor v. Chief Agu & Anor (1992) 3. NWLR (Pt. 229) 350 where Karibi-White JSC inter alia said:
” …the compliance vel non of a court is a legal condition which cannot be waived by the parties. Where the condition of want of compliance exists, it is not a mere irregularity which can be cured by consideration of substantial justice but a fundamental defect fatal to the adjudication. ”
Learned counsel urged us to uphold the preliminary objection and declare the grossly incompetent and an abuse of court process as the record on which the appeal was argued is not before the honourable court as required by the rules of the court.
Learned counsel for the appellants Olusola O. Idowu Esq. in reply submitted that the respondent is relying on technicalities and that justice should not be sacrificed at the altar of technicalities. Counsel argued that the respondent did not show the court how the defect in the record of proceedings affected the position of the respondent when he used the same record of proceedings in his own brief of argument. Relying on the cases of Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) 1 @ 54A. 56B – C: State Independent Electoral Commission Ekiti State v. National Conscience Party (2008) 12 NWLR (Pt. 1102) 720 @ 743 A-C, learned counsel urged us to dismiss the preliminary objection.
I do not think the problem here is as grave as the respondent is making it out to be. It is true that the appellants abandoned the original notice of appeal and with the leave of the court filed a fresh notice of appeal out of time. Can it really be said that the record of proceedings earlier filed in the appeal became abandoned along with the first notice of appeal? By Order 17 rule 7 of the Court of Appeal Rules 2011, it is after the registrar of the court below has received a notice of appeal that he shall prepare and forward to the Registrar of the court of appeal the record of appeal. In this appeal, the record of appeal was already before the court. The appellants/applicants had deposed in paragraph 10 of their affidavit in support of the application for extension of time within which to appeal “that the record of proceedings had earlier been compiled by the lower court and forwarded to this honourable court since 2006……” The appeal number was not changed. It remained the same with the record of proceedings still amongst the processes in the court file. Granted that the appellant should have applied even orally for the record of appeal already filed to be deemed duly filed and served pursuant to the new notice of appeal, I do not think the failure to make such an application is fatal to this appeal. It is a mere irregularity which can be waived on grounds of substantial justice given the nature of the appeal – appeal against murder sentence punishable by death. The case of Odofin v. Agu (supra) relied on by the respondent is distinguishable. In that case, time within which to appeal had expired and the respondent filed a motion in the court of appeal on 21/10/85 applying for extension of time within which to ask for leave to appeal against the judgment delivered on 16/5/85 and leave to appeal against the judgment. He did not ask for extension of time within which to appeal. The court clearly had no jurisdiction to hear the appeal, time within which it could be heard having expired and there being no application for extension of time. The Supreme Court consequently held that the error affected the jurisdiction of the court to hear the appeal and was a fundamental defect fatal to adjudication, not a mere irregularity which can be cured by consideration of substantial justice. The cases cited by counsel for the appellants; S.I.E.C. Ekiti State v. N.C.P. (supra) and Ndukwe v. LPDC (supra) are more apt in the circumstances of the present appeal. The use of the record of proceedings without any deeming order did not in any way affect the jurisdiction of the court and did not result in any miscarriage of justice. It is a mere technicality that should not be allowed to defeat the cause of justice. See Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652.
In the circumstances the preliminary objection fails. It is hereby dismissed.
In his brief of argument, counsel for the respondents identified two issues for determination:
1. Whether there was non-compliance with section 215 of the Criminal Procedure Laws of Oyo State as applicable in Osun State at the relevant time and section 35(6) of the constitution of the Federal Republic of Nigeria 1999 as to render the whole proceedings at the trial court a nullity.
2. Whether the prosecution has not proved the case of murder against the Appellants beyond reasonable doubt as required by section 138 of the Evidence Act, considering the totality of the evidence adduced before the trial court.
These issues are basically same as the issues formulated by the appellants except that the appellant removed the matter of the confessional statements from the respondents issue no. 2 and made it a separate head, thus giving rise to his three issues.
Let me first take the issue of plea taking or non compliance with section 215 CPL as its outcome will determine whether or not to consider the other issues.
Mr. Idowu for the appellant in his brief submitted that the appellants did not take their plea before the commencement of the trial as required by Section 215 of the CPL. Counsel argued that as clearly shown at page 35 of the record of appeal, the first witness PW1, Mrs. Agnes Oni had been sworn and had started her evidence before the trial judge suddenly realized that the appellants had not taken their plea and stopped her evidence so the appellants could take their plea. Counsel submitted that the provisions of section 215 CPL is mandatory and provides that the plea must be taken before the trial commenced. The section counsel argued does not leave room for discretion of the trial judge regarding when the plea should be taken. Counsel submitted that the failure of the trial court to obtain the pleas of the two appellants before commencement of the trial rendered the trial a nullity. Counsel cited the cases of Oyediran v. Republic (1967) NMLR 122: Barmo v. State (2000) 1 NWLR (Pt. 641) 424 @ 437-438: Rufai v. State (2001) 13 NWLR (Pt. 731) 718 @ 733: Dike v. State (1996) 5 N\MLR (Pt. 450) 553: Kajubo v. State (1988) 1 NWLR (Pt. 73) 721: Tobby v. State (2001) 10 NWLR (Pt.720) 23 @ 32. Counsel urged us to declare the proceedings of the High Court a nullity and to set aside the conviction and sentence. He further urged us not to order a retrial of this case because of the hardship and double jeopardy it will impose on the appellants.
In reply, Mr. Bamidele for the respondent after copiously setting out what transpired in court before the plea of the appellants were taken which in substance tallied with the story as told by the appellants submitted that going by the facts as contained in the record of proceedings the complaint of the appellants regarding the manner their plea was taken can only amount to a mere irregularity and is in substantial compliance with the provisions of section 215 CPL and section 36(6)(a) of the Constitution. Counsel cited the case of Michael Peter v. The State (1997) 12 NWLR (Pt. 531) 1. He referred to several other cases. Counsel further submitted that the contention of the appellants that the proceedings are a nullity is misconceived as most of the cases cited and heavily relied on are not relevant to the instant case. He argued that the cases dealt with instances where there is nothing on the records of the trial court to show that the accused/appellant’s plea was taken at all. Counsel urged us to hold that at the time the appellants’ plea was taken, there was substantial compliance with the provisions of section 215 of the CPL and section 36(6) (a) of the constitution of the Federal Republic of Nigeria 1999 as no irregularity or any miscarriage of justice occurred. I shall begin by setting out in full exactly what transpired in court before the plea of the appellants were taken – pages 34 & 35 of the record of appeal:
“1st and 2nd accused present
Miss A.A. Fatoki Senior State Counsel appears for the State
Mr. S.A. Banjo (holding Mr. Agboola’s brief) for the accused persons.
Miss Fatoki says the matter is for hearing and that she is ready to go on. Mr. Banjo says the proof of evidence is with Mr. Agboola who has been studying them but who unfortunately is otherwise engaged before the High court of Osogbo. He has asked him to ask for adjournment to the 4th of March, 1999 when he will be available.
Miss Fatoki in her further reply said there is a particular witness who has been coming from Warri in Delta State and she would want her evidence to be taken since the proofs of evidence had always been with Mr. Banjo who has had time to study it before passing it to Mr. Agboola. Mr. Banjo did not object to the application.
COURT:- Mrs. Agnes Oni, the witness should be called to give her evidence so that she will not feel frustrated by her frequent appearance without the case being heard.
1st P.W. MRS AGNES ONI: Sworn on holy Bible and states in English Language. I am Agnes Oni, No. 4 Nta Road Eku, via Warri in Delta State. I am a teacher at Baptist High School, Eku, Delta State. I know the two accused persons.
COURT: At this stage the court discovers that the plea of the accused persons had not been taken. Court now orders the charge to be read to the 2 accused persons for their plea to be taken. Charge read to the accused persons in Yoruba which they perfectly understand:
1st Accused pleads not guilty.
2nd Accused pleads not guilty
1st P.W. continues her evidence: I remember the month of July 1996. Joy Omosaye a fiancee to my cousin Gabriel Umukoro the deceased came to me and informed me that my cousin was missing…………..”
From the proceedings above it is clear that hearing had commenced before the accused persons took their plea. We now have to look at what the law says and then what the authorities say.
Section 215 of the CPL 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 settled therewith. ”
Section 36(6)(a) of the 1999 Constitution provides:
“33(6) every person who is charged with a criminal offence shall be entitled:-
(a) To be informed promptly in the language that he understands and in detail of the nature of the offence.”
The opening phrase “the person to be tried” leaves no doubt that the plea is to be taken before commencement of trial. These provisions have been interpreted in a plethora of judicial authorities. The case of Hussaini Barmo v. The State (2000) 1 NWLR (Pt. 641) 424 @ pp.437 – 438. G-A is directly in point. In the case, as in the one under consideration, the plea of the accused persons was not taken at the commencement of the trial. The trial court only took the accused persons’ pleas after listening to the evidence and upon counsel to all the parties agreeing that the plea could be taken at any stage of the trial before judgment. Omage JCA in his judgment at page 437 observed.
“It can now be truly said that the issue is resolved, that whenever a criminal trial proceeds without the arraignment of the accused person, who should plead immediately after the charge is read to him the trial will result in a nullity. The law does not require that the charge be read within, or after the commencement of a trial. The plea should be taken before the commencement of trial.”
It is true that in some of the authorities where the trial was declared a nullity, the plea was not taken at all but in some others, there were procedural errors in recording the outcome of the plea. See the cases of Eyorokoromo v. The State (1979) 6-9 SC 3: Josiah v. The State (1988 1 NMLR (Pt. 1) 125: Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721. Compliance with the section has always been given a very strict interpretation. In Dike v. The State (1996) 5 NWLR (Pt.450) 553. Katsina Alu JCA (as he then was) observed:
“While the record shows that the counts were in fact read over and explained to the appellants in lgbo language the record is silent as to whether this was done to the satisfaction of the court. Also the plea of each of the appellants was not recorded separately. Block pleas are not envisaged by section 215 of the Criminal Procedure Law. The conditions contained in section 215 of the Criminal Procedure Law are mandatory and must therefore be complied with. This failure clearly rendered the trial a nullity.”
Trials have also been declared nullities where the charges were amended and pleas not retaken. Given the plethora of authorities on this issue, it is too late in the day to put up the argument as the respondent did in this appeal that the slip is only a mere irregularity which did not occasion any miscarriage of justice. As pointed out by Omage JCA in Barmo v. State (supra):-
“….to examine the operation of the law which requires compliance in order to see whether or not its observation led to a miscarriage of justice substantial or otherwise is to add to the words of the legislation. In the instant case the issue to be considered is … … … . ..whether the learned trial judge complied with the provisions of section 215 of the Criminal Procedure Act which requires that o charge against an accused person be read to him and his plea obtained before trial was observed. ”
Notwithstanding that the trial judge in this appeal before us realized the error early and tried to rectify it, the truth remains that the trial commenced before the plea was taken. Perhaps the situation may have been different if after the plea was taken, the trial was then commenced afresh with PW1 being re-sworn and beginning her testimony afresh.
But she merely continued from where she stopped leaving no doubt that the trial had commenced before the plea was taken. This case is clearly distinguishable from the case of Michael Peter v. The State (supra). There, the provisions of section 215 were fully complied with except the mere omission by the trial court to state that it was satisfied that the appellant understood the charge as interpreted to him in Yoruba before he pleaded not guilty. The Supreme Court rightly held that there was substantial compliance with the law. How can any one in the instant case hold that there was substantial compliance with the law when proceedings had commenced before the plea was taken; given the numerous decisions of the highest court of the land on the issue. As unfortunate as this is, I have no choice but to agree with the appellants that failure to comply with Section 215 CPL renders the whole proceedings a nullity. See Isiaka Rufai v. The State (2001) 13 NWLR (Pt. 731) 718.
In the case of Tobby v. State (2001) 10 NWLR (Pt.720) 23 @ 33, Uwaifo JSC in his contribution commented on the unfortunate effect of this strict interpretation of Section 215 on murder convictions thus:-
“I think therefore, that in a plea taken by virtue of section 215 CPA it becomes highly academic in the case of murder trial whether the provisions of that section were fully observed before the accused pleaded to the charge. There has been no occasion on which this court has been asked to revisit its earlier decisions upon this consideration. There is no knowing if this court will be swayed to exclude plea in capital offences from the interpretation already given to section 215. Perhaps it is time to urge for an amendment to section 215 of the CPA. I say this because the technical application of that section has led a number of times to the unfortunate setting aside of convictions in murder cases arrived at upon otherwise properly conducted proceedings backed by unassailable evidence. Some of them were murders committed in very gruesome manner. I do not think section 215 was really intended to apply to capital offences. That section seems appropriate to offences where conviction can be recorded upon proper plea under it and the fulfillment of section 218. Only an amendment will surely reverse the way it is made to apply to murder trials in view of the decisions of this court. ”
A study of many of the cases where convictions for murder have been set aside for non compliance with section 215 will reveal that the section is like the final bus stop for murder convicts. When there is nothing else to hold on to as a ground of appeal, section 215 comes to the rescue. I think there is merit in the view of Uwaifo JSC as set out above. Where an accused person after a full trial had been found guilty of murder, what does it matter that the plea taking was flawed in some aspect. It is a mere academic exercise. If however conviction was to be based on a plea of guilty in lesser offences then it becomes important that section 215 be complied with strictly. For now the law remains what it is and we are bound by the decisions of the apex court. I hold therefore that the non compliance with section 215 has vitiated the trial of the appellants and rendered the trial and the entire proceedings null and void.
I am however unable to agree with the appellants that an order for retrial of the case should not be made. Without going into the merits of the case, I am of the view that the conditions laid down in the case of Abodundu & Ors v. The Queen (1952) SCNLR 162: . (1959) 4 FSC 70; and elaborated in Kaiubo v. The State (supra) for ordering a retrial are fully satisfied in this appeal. This appeal succeeds. I declare the trial of the appellants a nullity. I hereby order for a fresh trial of the appellants by another Judge of the High Court of Osun State Ilesa Judicial Division.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, CHINWE EUGENIA IYIZOBA, JCA just delivered. I agree with the reasoning and conclusion therein, which I adopt as mine. The failure of the learned trial Judge to take the plea of the accused persons before the commencement of the trial tainted the entire proceedings and rendered same a nullity.
It has been held that strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite for a valid trial and where a trial Judge proceeded to try the accused without strictly complying with the provisions of Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the 1999 Constitution (as amended) the trial would be declared a nullity by an appellate court. See: KAJUBO VS. THE STATE (1988) 1 NWLR (73) 721; EYOKOROMO VS. THE STATE (1929) 6 – 9 S9 3,
It was held in OKEKE VS. THE STATE (2003) 15 NWLR (842) 25 that arraignment is not a matter of mere technicality. It is a very important initial step in the trial of a person on a criminal charge. Failure to comply with any of the conditions for a valid arraignment would render the whole trial a nullity.
In the instant case, the learned trial Judge erred in not commencing the trial a fresh after taking the pleas of the accused persons midstream.
I agree with my learned brother in the lead judgment that the appeal has merit and should be allowed’ I also allow the appeal. I however abide by the consequential order for a fresh trial of the Appellants before another Judge of the High Court of Osun State, Ilesa Judicial Division other than OGUNNIYI, J.
MOORE A. A. ADUMEIN. J.C.A.: Plea is defined as “An accused person’s formal response of “guilty”, “not guilty” or “no contest’ to a criminal charge” BLACK’S LAW DICTIONARY, EIGHT EDITION, page 1189. In ordinary English Language, plea is an accused person’s “answer to a charge in a court of law, especially one stating that he or she is guilty or not guilty” – ENCARTA WORLD, ENGLISH DICTIONARY, page 1446.
Section 215 of the Criminal Procedure Law provides that a “person to be tried upon any charge shall have the charge read and explained to him and such a “person shall be called upon to plead instantly thereto”. The word “instantly” used by the Legislature in section 215 of the Criminal Procedure Law underlines the need for a charge or information to be urgently or immediately read and explained to an accused person upon arraignment, In this case, the information was not read and explained to the appellants, who were the accused persons in the trial court before the commencement of their trial. They were, therefore, not validly arraigned in the court below, as they did not join issue with the State by the failure of the trial court to obtain their pleas before proceeding with the trial. In the case of ALONGE TEMITOPE V. THE STATE (2011) 6 NWLR (Pt. 1243) 289 at 305, this court, per NGWUTA, JCA (as he then was, now JSC) stated the elements of a valid arraignment and the necessity to comply with all the requirements. His Lordship, NGWUTA JCA (as he then was) explained position of the law as follows;
“In law a valid arraignment consists of the following elements which must co-exist.
1. The accused must be present and unfettered before the trial court.
2. The charge must be read and explained to him in the language he understands to the satisfaction of the court by the registrar of the court.
3. The accused shall be called upon to plead and
4. His plea shall be instantly recorded by the court.
Failure to comply with any of the four conditions will render the subsequent trial a nullity. See Solola v.
State (2005) 11 NWLR (Pt. 937) 460 SC; Lufadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 535 SC. Amalav. State (2004) 12 NWLR (Pt. 1038) 30 SC.”The mandatory nature of the above requirement of a valid arraignment is evident from S.36(6)(a) of the constitution of the Federal Republic of Nigeria (1999).
Non-compliance with any of the requirements will vitiate the trial and render it a nullity. See Dibie v. State (2007) 9 NWLR (Pt. 1038) 30 SC.”
There was no valid arraignment of the appellants in the trial court and the proceedings in that court are a nullity.
It is for these reasons and the more detailed reasons in the lead judgment of my learned brother, IYIZOBA, JCA that also allow the appeal and order for a fresh trial of the appellants by a Judge of the High Court of Osun State, other than OGUNNIYI, J.
Appearances
Olusola Idowu Esq.
E. C. Nkemka Esq.For Appellant
AND
Bamidele Salawu Esq. Senior State Counsel Ministry of Justice Osun StateFor Respondent
