LAWAN SANI v. THE STATE
(1999)LCN/0645(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of October, 1999
CA/K/103/C/98
JUSTICES:
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
Between
LAWAN SANI Appellant(s)
AND
THE STATE Respondent(s)
RATIO
CONDITIONS TO BE FULFILLED FOR AN ACCUSED PERSON TO BE PROPERLY AND VALIDLY ARRAIGNED BEFORE THE COURT
Section 187 of the Criminal Procedure Code provides:
“187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge 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 or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused.”
It could be seen that the mandatory requirements of Section 187 of the CPC stipulates that:
(a) The accused person must be brought before the court.
(b) The charge must be read out in court and explained to him and
(c) He shall be asked whether he is guilty or not guilty of the offence charged.
These conditions are mandatory. The accused person is properly and validly arraigned before the court only when these conditions are complied with. Also Section 33(6) of the Constitution of the Federal Republic of Nigeria 1979 provides as follows:
“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 provisions of Section 215 of the Criminal Procedure Act are similar to those of Section 187 of the Criminal Procedure Code and it was held by the Supreme Court for a valid and proper arraignment of an accused person, the conditions as contained in Section 215 of the C.P.A. must be satisfied and failure to comply with any of the conditions will render the whole trial a nullity. See Eyorokoromo v. The State (1979) 6 – 9 SC 3; Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 and Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721.
In Kajubo v. The State (supra) The Supreme Court held at page 731 per Wali J.S.C. that:
“The conditions laid in section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution are not for formality sake but are specifically provided to guarantee the fair trial of an accused person. The trial Judge has a bounden duty to secure the compliance with the provisions of both Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the Constitution by showing that in his record. See Godwin Josiah v. The State (1985) 1 SC 406 at 416; (1985) NWLR (Pt. 1) 125. The excerpts of the trial court’s proceedings quoted did not show that the conditions laid in Section 215 of the Criminal Procedure Law were complied with.” PER MUHAMMED, J.C.A.
THE PRINCIPLES GUIDING THE COURT ON THE RETRIAL OF AN ACCUSED PERSON
The next issue which falls to be considered is whether the accused person should be put on trial again. The issue of a retrial of an accused person where the case had been declared a nullity was the subject in Abodundu & Ors. v. The Queen (959) SCNLR 162 or in (1959) 4 FSC 70. Five principles were laid down in the case by the then Federal Supreme Court. They are:
(a) Whether there has been an error of law in the earlier trial;
(b) or an irregularity in the procedure that rendered the trial a nullity;
(c) that besides the error the evidence discloses a substantial case against the accused person;
(d) that there was no special circumstances that should render are- trial oppressive.
(e) that to refuse a retrial would occasion a greater miscarriage of justice.
The learned justice in Supreme Court held that all the factors must co-exist; so that a case may be sent back for a retrial. See Abu Ankwa v. The State (1969) 1 All NLR 133. PER OMAGE, JC.A.
D. MUHAMMAD, J.C.A. (Delivering the Leading Judgment):The appellant was charged with rape punishable under Section 283 of the penal code in that he had sexual intercourse with a four year old girl. At the trial the prosecution called three witnesses. At the conclusion of the evidence for the prosecution, the defence made a no case submission which was overruled by the trial judge. The appellant then gave evidence on his own behalf. He did not call any other witness. After hearing submission of counsel the trial judge, in a reserved judgment, found the appellant guilty of committing the offence. The appellant was convicted and sentenced to Ten (10) years imprisonment.
The appellant was aggrieved with this decision, he therefore appealed to this Court. The Notice of Appeal contained two grounds of appeal. The appellant filed his brief of argument in which he identified two issues for the determination of the appeal. The respondent also filed a brief. In the respondent’s brief two issues were formulated for determination. At the hearing of the appeal both counsel adopted their respective brief of argument.
It was during the course of writing this judgment that I discovered that nowhere in the record of appeal was the appellant called to enter his plea. I therefore asked the Registrar of this court to write to the Two (2) counsel to come and address us on the effect of not entering a plea on a criminal trial. Counsel for the appellant appeared while the respondent’s counsel even though he was served failed to appear. Mr. Ibikunle learned counsel for the appellant submitted that Section 187(1) of the criminal procedure code provided that a plea is mandatory. He also submitted that Section 187(1) is similar to the provision of Section 215 of the Criminal Procedure Act and stated that in Effiom v. The State (1995) 1 NWLR (Pt. 373) 507; Vol. 28 LRCN 320 at 442, it was held that this provision is mandatory and not directory and must be strictly complied with. He submitted that without a proper plea, the trial is a nullity. He also referred to Section 33(6)(a) of the 1979 Constitution. He referred to Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721; (1988) Vol. 1 NSCC 275 at 278and submitted that the trial was a nullity. He also submitted that the appellant should be set free because it would be oppressive if he is put on trial again. He urged us to allow the appeal.
Section 187 of the Criminal Procedure Code provides:
“187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge 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 or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused.”
It could be seen that the mandatory requirements of Section 187 of the CPC stipulates that:
(a) The accused person must be brought before the court.
(b) The charge must be read out in court and explained to him and
(c) He shall be asked whether he is guilty or not guilty of the offence charged.
These conditions are mandatory. The accused person is properly and validly arraigned before the court only when these conditions are complied with. Also Section 33(6) of the Constitution of the Federal Republic of Nigeria 1979 provides as follows:
“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 provisions of Section 215 of the Criminal Procedure Act are similar to those of Section 187 of the Criminal Procedure Code and it was held by the Supreme Court for a valid and proper arraignment of an accused person, the conditions as contained in Section 215 of the C.P.A. must be satisfied and failure to comply with any of the conditions will render the whole trial a nullity. See Eyorokoromo v. The State (1979) 6 – 9 SC 3; Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 and Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721.
In Kajubo v. The State (supra) The Supreme Court held at page 731 per Wali J.S.C. that:
“The conditions laid in section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution are not for formality sake but are specifically provided to guarantee the fair trial of an accused person. The trial Judge has a bounden duty to secure the compliance with the provisions of both Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the Constitution by showing that in his record. See Godwin Josiah v. The State (1985) 1 SC 406 at 416; (1985) NWLR (Pt. 1) 125. The excerpts of the trial court’s proceedings quoted did not show that the conditions laid in Section 215 of the Criminal Procedure Law were complied with.”
Oputa J.S.C. also in the same case stated:
“The mandatory provisions of Section 215 of the Criminal Procedure Act that the information or charge should be firstly read over to the accused, then secondly, explained to the accused and thirdly, explained to him to the satisfaction of the court are not merely cosmetic: they are not mere semantics – No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea. Section 215 C.P.A sets out mandatory rules required by law for a proper arraignment. Now arraignment is ad rationem ponere: it is calling an accused person to reckoning. Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him? It is a notorious fact that English, the Language of the court, the language in which charges and information are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and that even those of them who are literate may not easily follow and comprehend the language of the Court.”
In our present case, the charge was not read out and explained to the accused person. He was not asked whether he was guilty or not guilty of the offence charged. In short the appellant’s plea was not taken. The trial is therefore a nullity and I so hold.
The next issue is to consider whether or not to order a re-trial. In Abodundu v. The Queen (1959) SCNLR 162, the Supreme Court stated the principles to be followed by the Court in deciding whether or not to order a retrial. It was stated at pp. 166 – 167:
“We are of the opinion that, before deciding to order a retrial, this Court must be satisfied: (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice and to invoke the proviso to Section 11(1) of the Ordinance (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant: (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences of 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; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice that to grant it.”
In Abu Ankwa v. The State (1969) 1 All NLR 133. The Supreme Court held that all there factors must co-exist so that a case may be sent back for retrial. See also Akinfe v. The State (1980) 3 NWLR (Pt 85) 729.
I have very carefully considered the circumstances of this case. The trial was a nullity because the appellant’s plea was not taken. Leaving this error aside, looking at the evidence adduced by the prosecution as a whole, It discloses substantial case against the appellant. Also the appellant was accused of committing rape, which is not a trivial offence. The fact that the trial was a nullity coupled with the fact that the appellant was convicted only last year and is yet to serve the sentence imposed upon him, moreso there is no such special circumstances as would render it oppressive to put the appellant on trial a second time. In my view, this is a proper case to be sent back for retrial.
In the result, I declare the appellant’s trial a nullity. I hereby send back the case to the Katsina High Court for retrial.
In the result, the appeal succeeds and is hereby allowed. The case is sent back to the Katsina High Court for retrial before another Judge.
MOHAMMED, J.C.A.: My learned brother Muhammad J.C.A. had permitted me to read in advanced his judgment in this appeal which he has just delivered. I entirely agree with him that since the plea of the appellant was not taken by the trial court before it proceeded with the trial of the appellant and his subsequent conviction and sentence, the entire proceedings of the trial of the appellant including his conviction and sentence are a nullity. This of course means in Law, that the appellant was not tried at all for the charge of rape punishable under Section 281 of the Penal code for which he was arraigned before the trial Katsina High Court. Accordingly, I also allow the appeal by declaring the trial of the appellant a nullity.
However, having regard to the circumstances of this case, particularly the fact that the appellant has only served a small portion of his ten years jail term, the justice of this case demands that the case should be sent back to the trial court for the appellant to be properly tried by another Judge.
OMAGE, J.C.A.: The appellant in this matter was convicted by the Katsina State High Court for the offence of rape of a child of four years old and sentenced to a term of imprisonment for ten years. The charge of rape contrary to section 283 of the Penal code was proved against the appellant when by the evidence tendered in court and the doctor’s report. The appellant was found to have had sexual intercourse with a child of four years old. Before the incident the prosecution deposed that the appellant gave the sum of one naira in coin to the victim. The victim later on the same day 18/1/96 identified the appellant whose name she called to her mother; before the appellant was arrested. A fuller report of the trial is contained in the lead judgment of my learned brother R.D. Muhammad J.C.A.
The convict was dissatisfied with the judgment of the court and filed two grounds of appeal, from which the following two issues were formulated. They are:
(i) “Whether the guilt of the appellant was proved and established beyond reasonable doubt having regard to the quality of evidence adduced before the trial court.”
The Respondent adopted the two issues formulated by the Appellant and adduced different arguments for each issue from those of the Appellant. On reading the record of proceedings in the printed record, one issue not contained in the two briefs of argument of the two parties is the discovery from the record that the plea of the accused person was not taken at the commencement of trial or at any time during or after the trial. Upon discovery of the omission to observe such a vital requirement precedent to a trial, this court invited the counsel for the Appellant and the Respondent to address it on the viability of the trial of the Appellant.
The counsel for the Respondent addressed the court to the effect that the Respondent could offer no argument in support of the trial. There was proof of service on the prosecution but they did not come. The Respondent urged the court to declare the trial null and void. There is thenceforth only one issue to be determined in this appeal. This is so because when the issue as to the legality of the trial is determined negatively, the two issues formulated by the Appellant and adopted by the Respondent will become moribund. The scenario which led to the incident is in the printed record. It shows that the charge against the accused person, now appellant was mentioned on 24th October, 1996. On that day, the accused person was absent from the Court; and the charge was adjourned to 7/11/96. On that day, the accused was in court, but the State Counsel was served with the charge, proof of evidence, list of witnesses and exhibits if any. The case was adjourned to 26/11/96. On 26/11/96 the State Counsel was in court and introduced as Ahmed Abdu. The State Counsel prayed the court to issue out summons to witnesses, and for a date for hearing, upon which reason the court fixed the case for hearing on 10/1/97. On the adjourned date, the prosecution counsel announced his preparation to proceed with the case. The accused person said he could not afford a lawyer. Mr. Ibikunle, of legal aid counsel was appointed for him. The defence counsel asked the court for a short adjournment which was allowed by the court, and the matter was adjourned to 28/1/97. On that day, the case was further adjourned as the accused person was absent. The case was adjourned to 13/2/97. The case was further adjourned on that day 18/3/97 owing to the absence of the accused person. On 18/3/97, counsels for prosecution and for the accused were present in court. The prosecution counsel applied for adjournment because the witnesses for prosecution were absent. The case was adjourned to 29/4/97 for hearing. On 29/4/97 the prosecution opened its case by calling the 1st prosecution witness. The victim of the rape was recorded as being unable to testify. The second prosecution witness was called, and the case proceeded to trial without any plea being taken from the accused person because the charge was never read to the accused person. Section 187 Criminal procedure code is the same as the Criminal Procedure Act Section 215 and both provide as follows: for an arraignment of an accused person: and for the charge to be read to the accused in Court; which means that an accused person shall be arraigned before the court.
An arraignment consists in the Registrar of Court or officer of court.
“(a) calling the accused by name while the accused is standing in the dock
(b) reading over and explaining the charge or indictment to him in a satisfactory manner and
(c) asking him to plead instantly thereto.”
It has been decided that failure to comply with any of the conditions above will render the whole trial a nullity. Eyorokoromo v. The State 1979 6 – 9 SC 3.
(ii) Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721.
(iii) Josiah v. The State (1985) 1 NWLR (Pt 1) 125.
See also Onuoha v. IGP 19 NRNL 96. As in the case of Section 187 Criminal Procedure Code, the provision of section 215 of the Criminal Procedure Act is mandatory so that a failure to comply with it renders the entire trial a nullity. It must be recorded that before now despite the decision in Eronini v. The Queen (1953) 14 WACA 366 in the case of Nwafor v. Okegbu (1979) 11 SC, it was not quite clear cut that the failure to comply with the requirement of section 215 of the Criminal Procedure Act led to declaring the trial a nullity. The consideration was made whether the failure to comply therewith occasioned a substantial miscarriage of justice. See the dissenting judgment of the Hon. Justice Bello J.S.C. as he then was Modern approach to the issue of a failure of the court to read the charge and obtain the plea of the accused in person is in my view the correct interpretation of section 215 of the Criminal Procedure Act and of Section 187 of Criminal Procedure Code. It will not do to read more meaning into a legislation than what is therein contained.
Section 187 Criminal Procedure Code is mandatory. A trial which ignores its provision is a nullity. The accused person in this case was not arraigned before the court. The charge was not read to him and he was not asked to plead instantly. The trial of the accused person is a nullity. Because the trial did not take place in the eyes of the law, it is ideal to consider the two issues formulated by the appellant and the Respondent in their briefs of argument.
The next issue which falls to be considered is whether the accused person should be put on trial again. The issue of a retrial of an accused person where the case had been declared a nullity was the subject in Abodundu & Ors. v. The Queen (959) SCNLR 162 or in (1959) 4 FSC 70. Five principles were laid down in the case by the then Federal Supreme Court. They are:
(a) Whether there has been an error of law in the earlier trial;
(b) or an irregularity in the procedure that rendered the trial a nullity;
(c) that besides the error the evidence discloses a substantial case against the accused person;
(d) that there was no special circumstances that should render are- trial oppressive.
(e) that to refuse a retrial would occasion a greater miscarriage of justice.
The learned justice in Supreme Court held that all the factors must co-exist; so that a case may be sent back for a retrial. See Abu Ankwa v. The State (1969) 1 All NLR 133.
In the instant case, there are several irregularities in the case of the prosecution, but besides the error, the evidence discloses a case against the accused person.
However, much the irregularities are, it seems to me that a greater miscarriage of justice will result if the appellant is not retried. It is clear from the evidence that a substantial case can be made against the accused person, and but for the error in the trial, the hearing would not have been declared a nullity. It is appropriate in order to avoid a miscarriage of justice to order a retrial of the accused appellant, and I so order. I agree therefore with the conclusion of my Lord, the Hon. Justice R.D. Muhammad, that the case be remitted to the High Court Katsina for retrial of the appellant.
The appeal succeeds.
Appeal allowed.
Appearances
B.O. Ibikunle (Senior Legal Officer, Legal Aid) For Appellant
AND
Ahmed Abdu (State Counsel) For Respondent
