MORADAYO v. FRN (2021)

MORADAYO v. FRN

(2021)LCN/14990(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/L/467/2011

RATIO

CRIMINAL PROCEDURE: PROCEDURE UNDER THE CRIMINAL PROCEDURE ACT IN ANY CRIMINAL TRIAL

In any criminal trial, the procedure under the CPA is that a charge is filed in the registry of the trial Court by the prosecuting authority. On the day fixed for hearing of the case, the registrar calls out the names of the parties, the accused person(s) as contained in the charge sheet. See Section 215 CPA. The trial Court must ensure that the allegations are read to the accused and understood by him. After these procedures, a plea is then taken to the charge. See I.G.P. vs. Rossek (1958) LLR 73; Kajubo vs. State (1988) 3 SCNJ (Pt. 1)

Where an accused person is willing and able to plead to the charge read over to him, he may then enter any of the following pleas: a) plead to the jurisdiction of the Court. b) Plead not guilty etc. It therefore appears from the provisions of the CPA that the accused person must be present in Court before the notice of preliminary objection can be taken. In Alintah vs. FRN (2010) 6 NWLR (Pt. 119) 508 at 535; Dongban Mensem J.C.A. had this to say on the issue:-
“I think this is where the Appellant’s Counsel seem to have got right the distinction between criminal proceedings and trial. The proceedings ignited by arraignment whereupon the charge is read and explained to an accused person and where he does not understand English Language the charge is read and interpreted to him in the language he fluently understands. Thus will mature into commencement of trial as soon as the accused pleads to the charge. That is precisely the points in the proceedings where trial commences.
An accused person may, after the charge is read to him before pleading to it, object to the charge or the jurisdiction of the trial Court. And if an accused person enters an objection, his physical presence in Court will not be necessary for the hearing of the objection or any other preliminary objection. The presence of an accused person is only mandatory from the commencement and throughout the trial proceedings which begin with a plea to the charge. The above appears to be the law and I am bound by the decision of the Learned Law Lords of the Court of Appeal in Alintah vs. FRN.
I agree with the learned Senior Counsel for the prosecution that the presence of the accused persons at any stage of the proceedings is mandatory. The accused persons shall therefore appear in this Court on the next date of adjournment.” PER ABDULLAHI MAHMUD BAYERO, J.C.A.

CRIMINAL PROCEDURE: WHEN WILL PROCEEDINGS BE SAID TO HAVE BEEN COMMENCED

In a criminal trial, proceedings are said to have commenced with the reading of the charge to the accused person. Consequently anything done by the prosecution, and or defence (e.g. filing of processes, or making applications, taking witnesses) after the charge is read and the accused person enters his plea falls within the warm embrace of things done in the course of proceedings or arising in the course of proceedings. See the case of Prince Abubakar Audu vs. Attorney General of the Federation & Anor. (2012) LPELR-15527 (SC). PER ABDULLAHI MAHMUD BAYERO, J.C.A.

CRIMINAL PROCEDURE: WHEN WILL TRIAL IN A CRIMINAL CASE BE SAID TO COMMENCE

Trial in a Criminal case is said to commence with arraignment which in turn consist of charging the defendant or reading over the charge to him and taking his plea thereon. See Oyediran & 5 Ors. vs. The Republic (1967) NWLR 122 at 125 and Asakitikpi vs. The State (1993) 5 NWLR (Pt. 296) 641. PER ABDULLAHI MAHMUD BAYERO, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

OLUBUKOLA MORADAYO APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Bench Ruling delivered in the proceedings of 7/10/2010 by Hon. Justice M.B. Idris of the Federal High Court sitting in the Lagos Division in Charge No. FHC/L/284C/2010. The Appellant (7th Accused Person) was arraigned amongst other persons on a 5 count charge which borders on stealing, forgery, and false pretence. The Appellant filed a notice of preliminary objection dated 29/9/2010 found on pages 88-89 of the record, challenging the jurisdiction of the lower Court. On 7/10/2010, the notice of preliminary objection was brought to the attention of the lower Court but the Respondent’s senior Counsel objected to the lower Court taking the motion on the ground that the Appellant and the other accused persons must be present in Court before the said notice of preliminary objection can be heard. The primary consideration therefore that led to the bench ruling of the lower Court is whether or not the lower Court can dispense with the presence of the Appellant and the other accused persons while hearing the notice of preliminary objection. The lower Court took argument

from Counsel on both sides and delivered a Bench Ruling in favour of the Respondent, which is to the effect that the presence of the Appellant and the other accused persons is mandatory at the stage of hearing the notice of preliminary objection.

The lower Court therefore ordered that the Appellant and the other accused persons appear in Court on the next adjourned date. It is this decision of the lower Court that the Appellant is appealing against. The Notice of Appeal was filed on 14/10/2010 containing two grounds of Appeal.

The Appellant’s brief was filed on 8/9/2011 but deemed as properly filed and served on 11/1/2021. In it the following issues are formulated for determination to wit:
1. “Whether or not the Appellant is entitled to have her Notice of Preliminary Objection dated the 29th of September 2010 heard and determined by the learned trial Judge before arraignment and commencement of trial?”
2. “Whether the presence of the Appellant is mandatory for the hearing and determination of her Notice of Preliminary Objection dated 29th of September 2010?”

On issue one, it is the contention of learned

Counsel that as at 29/9/2010 when the Appellant filed her Notice of Preliminary Objection, trial had not commenced and as at 7/10/2010 when the matter came up, no notice of trial had been served on the Appellant and other accused persons, whereas the Appellant’s notice of Preliminary Objection had been served on the learned Attorney General of the Federation.

Counsel relied on Section 215 of the Criminal Procedure Act (the Act) which deals with the procedure by which trial commences in criminal proceedings and the case of Godspower Asakitikpi vs. The State (1993) 5 NWLR (Pt. 296) 641; Rufai vs. State (2001) 13 NWLR (Pt. 731) 718 where the Supreme Court interpreted a similar provision in Section 210 and 215 of the Criminal Procedure Act. Counsel stated that the purport of the decision in Asakitikpi vs. The State (supra) is that while Section 215 of the Criminal Procedure Act deals with commencement of a criminal trial on a charge or an information, Section 210 of the same Act provides for the circumstances where the presence of the accused person in a criminal trial becomes mandatory. It is the position of Counsel that from the decision of the

Court, it is clear that trial can only commence upon arraignment of the accused person whereby the charge is read to him and his plea is taken.

Counsel further posited that having established that trial has not commenced within the contemplation of Section 215 of the Criminal Procedure Act, at what stage of the proceedings will the preliminary application of the Appellant be taken? A question to which he submitted that there is nowhere in the entire provisions of Section 215 of the Procedure Criminal Act where it was stipulated as to when an accused person may file and argue an application challenging the jurisdiction of the Court to entertain the suit and the lower Court was therefore wrong in suggesting in his ruling that the Appellant’s notice of Preliminary Objection can only be taken after commencement of trial. Counsel argued that the interpretation given to the Section 215 of the Criminal Procedure Act by the trial Judge is clearly outside the provision of the Section either generally or by necessary implication. He relied on Oniwara Ibrahim vs. Ishola Fulani & Ors (2010) 17 NWLR (Pt. 1222) 3. 241 at 267-269; Nafiu Rabiu vs. State (1980) 8-11 SC

85 on interpretation of statute.

Counsel argued that Section 215 of the Act does not specify the time when pre-trial application can be taken but rather provides for the procedure in the commencement of criminal trial and as such an accused person can file an application challenging the bonafide of a criminal charge as against formal defect before the commencement of trial, at which time, the provision of Sections 210 and 215 of the Act cannot come into play. He referred to Chief Gani Fawehinmi vs. A.G Lagos State (No. 1) & 2 Ors (1989) 3 NWLR (Pt. 112) 707.

It is the contention of Counsel that as at 7/10/2010, when the matter came up, the affidavit evidence in support of the Notice of Preliminary Objection, along with the applications by other accused persons, were the only evidence on the issues raised in the application and submitted that, that alone was the material and compelling reason why the learned trial Judge ought to have either taken the application or adjourned for its hearing and not order that the Appellant appear in Court on the 27/10/2010 for arraignment. He placed reliance on NEPA vs. Ososanya (2004) All FWLR (Pt. 196) 918.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is the further contention of Counsel that in view of the circumstances of this case and the clear applicable provisions of Sections 210 and 211 of the Act, the learned trial Judge’s reliance on Alintah vs. FRN (2010) 6 NWLR (Pt. 1191) 508 at 528-529 is erroneous as it is clearly distinguishable from this case currently on Appeal. The distinguishable factor, Counsel submitted, is that the preliminary objection dated 29/9/2010 does not challenge the charge on the grounds of formal defects on the face of it but on the grounds stated on the motion paper and the supporting affidavit. Counsel therefore urged this Court to hold that the learned trial Judge erred in law in not following the decision in Fawehinmi’s case which decision accords with the clear intent of the provision of Section 215 and 210 of the Act. He urged this Court to resolve this issue in favour of the Appellant.

On issue two, it is the contention of Counsel that the purport of Section 210 of the Act presupposes the commencement of a criminal trial before it can apply and that the Appellant having established that criminal trial in this case had not commenced, Section 210 of the Act

does not apply in this case to mandate the presence of the Appellant in Court. For this position, Counsel cited Godspower Asakitikpi vs. The State (supra); Chief Gani Fawehinmi vs. AG Lagos State (No. 1) (supra); Gabriel Ezeze & Anor vs. The State (2004) 14 NWLR (Pt. 894) 491. That the conclusion of the Supreme Court in Asakitikpi vs. The State (supra) is that until the procedure for the commencement of trial under Section 215 of the Act has been complied with, the provisions of Section 210 of the Act requiring the presence of the accused person will not come into play. Learned Counsel reiterated the facts of Gabriel Ezeze & Anor vs. The State (supra) and the decision reached which Counsel assert, is the same with the decision reached in Chief Gani Fawehinmi vs. AG Lagos State (No. 1) (supra). Counsel submitted that in view of the decisions in the aforementioned cases and in view of the clear and applicable provisions of Section 210 and 215 of the Act, the learned trial Judge’s reliance on Alintah vs. FRN (supra) is erroneous as trial had not started in this case currently on appeal. Counsel urged this Court to find that the case of

the learned trial Judge’s reliance on Alintah vs. FRN (supra) does not apply to this case as the facts are clearly different and consequently resolve this issue in favour of the Appellant. Learned Counsel urged this Court to allow the Appeal and direct the hearing and determination of the Notice of Preliminary Objection dated 29/9/2010 by the learned trial Judge without the necessity of the appearance of the Appellant.

The Respondent’s brief filed on 14/3/2013 was deemed as properly filed and served on 11/1/2021. Learned Counsel for the Respondent distilled a sole issue for determination before this Court thus:-
“Considering the clear and unambiguous provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Criminal Procedure Act mandating the presence of an accused in Court from the commencement of and throughout criminal proceedings, whether the lower Court was not right when it mandated the physical presence of the Appellant in Court.”

In proffering argument in respect of the lone issue for determination, learned counsel referred to the Criminal Procedure Act, Cap 41 Laws of the

Federation of Nigeria 2004, as the Act making provision for the administration of criminal justice in Nigeria and regulating the conduct of same. He also made reference to Part 23 of the Act that makes provisions for the presence of parties and conduct of trials. Reference was also made to the provisions of Sections 210 and 215 of the Act. Counsel relied on the Black’s Law Dictionary, 8th Edition, Ugwu vs. State (1998) 7 NWLR 397 at 412 on the definition of an ‘accused’ and submitted that on the strength of the above cited authority, the Appellant falls into this category to whom the provisions of Sections 210, 215 and 167 of the Act applies to. Counsel gave a brief rundown of what transpired at the lower Court that led to the bench ruling that culminated into this Appeal. Learned counsel also reiterated the facts in the case of Alintah vs. FRN (supra), a case relied on by the lower Court in arriving at its decision and argued that this case currently on appeal being criminal in nature, the accused persons are under a statutory obligation to be present in Court. It is the contention of learned Counsel that the cases cited by the

Appellant’s Counsel in arguing the Appellant’s brief are not apt and in fact distinguishable. Counsel referred to the Fawehinmi’s case cited by the Appellant and submitted that in that case, the action was commenced by way of information whereas this case currently on Appeal was commenced by way of a charge. He placed reliance on Sections 2 and 334 of the Criminal Procedure Act on the definition of a ‘charge’ and ‘information’ respectively and asserted that an information and a charge are two separate and distinct concepts. Counsel posited that in actions commenced by a charge, trial is ignited by arraignment whereupon the charge is read and explained to the accused person in the language he understands.

Counsel making reference to the Asakitikpi and Rufai cases’ cited by the Appellant posited that the Appellant’s Counsel has failed woefully to demonstrate to this Court how the said cases established a principle that preliminary objection must be taken by the Court before the arraignment of the accused person, as succinctly established by the Alintah’s case. Against the assertion of learned

Counsel for the Appellant, it is the submission of Respondent’s Counsel that Alintah’s case on which the finding and decision of the lower Court was based, is on all fours with the facts of this Appeal and as such the lower Court acted within the purview of the Alintah’s case and the relevant Sections of the Criminal Procedure Act in reaching its decision. Counsel also contended that the Ezeze’s case relied on by the Appellant is not apt and also distinguishable and on the strength ofOkafor vs. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 137; INEC vs. Ray (2004) 14 NWLR (Pt. 892) 92 at 128 submitted that this authority is for all intents and purposes inapplicable to the Appellant’s case herein.

Counsel referred to pages 96-97 of the record where the Appellant was duly notified of the date of her arraignment and despite that, refused to appear in Court but instead, elected to flout a positive order of Court and proceed to taunt the Court further by seeking a remedy in the higher Court while still in contempt of the trial Court. Learned Counsel relying onGovernor of Lagos State vs. Ojukwu (1986) 1 NWLR (Pt. 18) 621 @ 633;

Alintah vs. FRN (supra) asserted that what ought to be before any Court now is a contempt proceeding against the Appellant or the ordering of a bench warrant against the Appellant. It is the submission of Counsel relying on Adeoye vs. State (1999) 6 NWLR (Pt. 605) 74 at 91; Alintah vs. FRN (supra) that no Court of law has jurisdiction to act or to take any proceeding in the absence of an accused person. It is the further submission of Counsel that for there to be a valid arraignment, the accused person must be physically present in Court from the commencement of and all through the criminal proceedings which begins with a plea to the charge. He called in aid the case ofLawrence vs. The King (1933) AC 699 at 708.

Counsel argued that as much as Chapter IV of the Constitution of the Federal Republic of Nigeria guarantees the fundamental rights of every citizen, same is without certain restrictions and qualifications and that every Court has the vires to deprive the accused of his fundamental rights, under certain circumstances. For this position he relied on Section 35(1)(a-e) of the Constitution of the Federal Republic of Nigeria. He therefore on the authority of

A.G Abia vs. A.G Federation (2006) 16 NWLR (Pt. 1005) 265 at 381-382 urge this Court to so hold, the Constitution being supreme.

It is the submission of learned Counsel that the issue of presence of an accused person is a condition precedent before any Court of law can entertain any application in any criminal matter. On this point, he cited Gambari vs. Gambari (1990) 5 NWLR (Pt. 152) 572 at 587 and urged this Court to apply the Constitution as well as the statutes relying onEdet vs. Chagoon (2008) 2 NWLR (Pt. 1070) 85 at 104-105. Counsel further relying on Criminal Law and Procedure in Nigeria, Law and Practice by Oluwatoyin Doherty page 241; Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595 submitted that it is only after an accused presence has been secured in Court and the charge read to him in the language he understands and he is invited to take his plea, that any objection to the charge can be taken and that anything short of this robs the Court of jurisdiction to hear the application. In conclusion, learned Counsel urged this Court to resolve this issue in favour of the Respondent and dismiss the Appeal while affirming the decision of the lower Court.

DETERMINATION OF THE APPEAL
Having regards to the grounds of Appeal vis-à-vis the Ruling appealed against, it is my considered opinion that the issue for determination formulated by the Appellant embraces the issue submitted by the Respondent. I will therefore adopt the Appellant’s issue in determining this Appeal. The convenient stage to commence is by looking at the Ruling of the Court below on Pages 110-113 of the Record of Appeal. The Ruling reads:- “I have listened to the submissions of the learned Senior Advocates and I think the law is clear on the appearance of the accused persons. In any criminal trial, the procedure under the CPA is that a charge is filed in the registry of the trial Court by the prosecuting authority. On the day fixed for hearing of the case, the registrar calls out the names of the parties, the accused person(s) as contained in the charge sheet. See Section 215 CPA. The trial Court must ensure that the allegations are read to the accused and understood by him. After these procedures, a plea is then taken to the charge. See I.G.P. vs. Rossek (1958) LLR 73; Kajubo vs. State (1988) 3 SCNJ (Pt. 1)

Where an accused person is willing and able to plead to the charge read over to him, he may then enter any of the following pleas: a) plead to the jurisdiction of the Court. b) Plead not guilty etc. It therefore appears from the provisions of the CPA that the accused person must be present in Court before the notice of preliminary objection can be taken. In Alintah vs. FRN (2010) 6 NWLR (Pt. 119) 508 at 535; Dongban Mensem J.C.A. had this to say on the issue:-
“I think this is where the Appellant’s Counsel seem to have got right the distinction between criminal proceedings and trial. The proceedings ignited by arraignment whereupon the charge is read and explained to an accused person and where he does not understand English Language the charge is read and interpreted to him in the language he fluently understands. Thus will mature into commencement of trial as soon as the accused pleads to the charge. That is precisely the points in the proceedings where trial commences.
An accused person may, after the charge is read to him before pleading to it, object to the charge or the jurisdiction of the trial Court. And if an accused person

enters an objection, his physical presence in Court will not be necessary for the hearing of the objection or any other preliminary objection. The presence of an accused person is only mandatory from the commencement and throughout the trial proceedings which begin with a plea to the charge. The above appears to be the law and I am bound by the decision of the Learned Law Lords of the Court of Appeal in Alintah vs. FRN.
I agree with the learned Senior Counsel for the prosecution that the presence of the accused persons at any stage of the proceedings is mandatory. The accused persons shall therefore appear in this Court on the next date of adjournment.”

It was at the stage of the hearing of the Preliminary Objection to the Charge preferred against her that the Court below ordered the Appellant to be in Court. In a criminal trial, proceedings are said to have commenced with the reading of the charge to the accused person. Consequently anything done by the prosecution, and or defence (e.g. filing of processes, or making applications, taking witnesses) after the charge is read and the accused person enters his plea falls within the warm embrace

of things done in the course of proceedings or arising in the course of proceedings. See the case of Prince Abubakar Audu vs. Attorney General of the Federation & Anor. (2012) LPELR-15527 (SC). In the instant case, Pages 1-4 of the record reveals that the charge containing five counts was filed on 27/07/2010. Trial in a Criminal case is said to commence with arraignment which in turn consist of charging the defendant or reading over the charge to him and taking his plea thereon. See Oyediran & 5 Ors. vs. The Republic (1967) NWLR 122 at 125 and Asakitikpi vs. The State (1993) 5 NWLR (Pt. 296) 641.

It is beyond doubt that a defendant must be in personal attendance in Court to take his plea to the charge which constitutes his arraignment. His Counsel cannot take the plea on his behalf; nor can the plea be taken by proxy.

The crux of the case is whether the personal attendance of the Appellant at the hearing of the Preliminary Objection to the charge was necessary as ordered by the Court below. The issue was treated exhaustively by this Court in Fawehinmi vs. Attorney-General of Lagos & Ors. (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 721-722 where it

was held thus:-
“The first leg of the first issue for determination in this Appeal is the issue in respect of the validity of the trial before Longe J. Learned Counsel for the Appellant has submitted that the absence of the two Respondents at the trial of the objections raised by Chief Williams and the failure of the Court to put the two Respondents in the dock and ask them to plead to the information rendered the whole proceedings invalid. There is a misconception in this argument. As pointed out by the learned trial Judge in his Ruling dated 1/08/1988 (Page 87 of the Record) Longe, J, did not claim that he was trying the two Respondents as he made it clear that what was before him at that time was an application challenging the validity of the information filed by the Attorney General of Lagos State. The learned trial Judge states:-
“To take the issue of the accused persons not being present in Court on the 22nd February, 1988, it is in my view that Longe, J., has put the matter to rest. For the purpose of emphasis, the learned Judge ruled as follows:- “The Court of Longe, J is a superior Court of record, which is a Court of

coordinate jurisdiction with this Court”.
The application is not a trial but one in which it is being contested that there should not be a trial. Until the trial stage is reached, there is no need for the “accused” to be in Court nor in the dock. There is a lot of substance in this reasoning. In my opinion information is not a charge as such, it is more than a charge. It may contain only one count charging only one offence. It may contain many counts each charging a separate offence.
The counts may be good or bad and can where appropriate be challenged individually. An objection as to the validity relating to the filing of the information for whatever reason may be taken at any stage, in my view, before the trial of the offence charged in the information. To this extent I am in respectful agreement with the learned trial Judge in the passage referred to above. The submission before Longe, J., by the learned Counsel for the two Respondents was not that he wanted to make a plea in bar but that the information was invalid and therefore there was nothing upon which his clients should be called upon to plead. This, in my opinion, can

always be taken as a preliminary issue before the actual trial of an accused. In a challenge to any action on the ground that it was an abuse of the process of the Court the objection must be raised before the Court start dealing with or trying the action before Longe J., was that the two Respondents should not be arraigned at all on defective and invalid information. Sections 353, 215, 221 and 210 all presuppose that the time for trial has come. Longe, J., rightly in my view, stated that it has not come and there was therefore no reason for the two Respondents to be in Court.
The case of Sunday Kajubo vs. The State (1988) 1 NWLR (Pt. 73) 721 at 732 did not decide that when a Preliminary Objection to the validity of an information flied is taken, the accused person must be present. The passage referred to was in respect of the duty of the trial Judge “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 the record”. Section 215 of the Criminal Procedure Law provides that the procedure of bringing an accused person before the Court and how the

charge or information should be read to him. This was not the stage before Longe, J. Even under Section 221 of the Criminal Procedure Law, a plea in bar is to be made before the accused pleads to the charge itself – Edu vs. Police (1952) 14 W.A.C.A 163 and Adio vs. The State (1986) 3 NWLR (Pt. 31) 714 at 729. Before a plea is taken the hearing of the information has not commenced but that does not mean that an objection to the information cannot be taken. The commencement of proceedings is from filing of the information. The information can be filed even if some of the accused persons are at large”.
A trial in criminal case commences when the defendant is called upon to take his plea to the charge and from that stage his personal attendance in Court is required under Section 210 of the C.P.A., which provides:-
“Every accused person shall, subject to the Provisions of Section 100 and subsection (2) of Section 223 of this Act, be present in Court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continue continuance in his presence impracticable.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Section 100 of the C.P.A. referred to in Section 210 thereof deals with trial in Magistrates Court, not the Federal High Court or High Court of a State, while Section 223(2) thereof referred to in Section 210 of the same C.P.A. (Supra) deals with dispensing with the physical presence of a person of unsound mind in Court during his trial.
Barring the two exceptions (Supra), once Defendant is asked to take his plea, his trial commences and the Defendant is mandatorily required from that moment to be physically present in Court for his trial until judgment is delivered in the case unless the Court of trial for reasons satisfactory to it excuses his absence. The trial of the Appellant had not therefore commenced at the stage she was ordered to be present in Court for the hearing of the Preliminary Objection to her motion and the motion to quash the charge sheet as to bring into force Section 210 of the C.P.A. The order made by the Court below for her physical attendance at the Court below at that point in time was accordingly, premature and unnecessary.
The cases of Rufai vs. The State (Supra) as well asEdet vs State (Supra) were on the presence of a

Defendant in Court to take his plea and is distinguishable from this Case where the fullness of time for the Appellant to take her plea had not come.
In Ezeze vs State (Supra) the Court held that an accused must be physically present in Court to take his plea and thereafter until judgment is delivered in the case subject to Section 223 (2) of the C.P.A., (Supra), and the dispensation of the Court of trial.
While the other segment of Ezeze (Supra) dealt with the moving of a motion challenging the charge against the Defendant before plea is taken to it, which the Court held per the lead judgment of Aderemi, J.C.A. (later J.S.C.) on page 504 thereof that-:
“…….I say without equivocation that the presence of the Appellant in Court was not mandatory before his motion to quash (the charge) could be heard or taken.”
The passage quoted from Ezeze (Supra) is in tandem with Fawehinmi (Supra).
Even in Alintah vs. FRN (Supra) 527 it was held that:-
“And if an accused person enters an objection, his physical presence in Court will not be necessary for the hearing of the objection or any other preliminary

application (before his plea is taken). The presence of an accused person is only mandatory from commencement (and throughout the trial proceedings which begin with a plea to the charge).”
The statement of law made by this Court in Alintah (Supra) is therefore in harmony with Fawehinmi (Supra) andEzeze (Supra), in my modest view. I follow the said cases to hold that the physical presence of the Appellant in Court was not mandatory at the hearing of the objection to have the charge against her quashed at the Court below.
Although the bench ruling was written off-the-cuff, the Court below admirably articulated the importance and imperative of a defendant being physically present in Court to take his plea to the charge (arraignment) which was yet to come. At that stage of the proceeding, the Court below had to clear the hurdle of the Preliminary Objection to the charge before the issue of taking plea to the charge would arise.
There is thus a significant demarcation between the hearing of a Preliminary Objection to a charge before plea is taken to the charge and proceedings from the time plea of a defendant is taken to the charge and

thenceforward to the delivery of judgment in a criminal case. In the latter case, a defendant must be physically present in Court unless for supervening reasons he is excused by the Court from personal attendance in Court, while in the former case dealing with the hearing of Preliminary Objection to the charge, a defendant need not be physically present in Court at the hearing of the Preliminary Objection to the charge which can be moved by his Counsel in his absence.

There is therefore substance in this Appeal. I therefore allow it and accordingly set aside the Ruling of the Court below ordering the Appellant to be physically present in Court at the hearing of the Preliminary Objection. This Judgment is confined to the physical presence of the Appellant in the Court below at the hearing of the Preliminary Objection to the charge which is hereby excused without prejudice to her physical appearance for any other matter necessary for her trial before the Court below. The case is remitted to the Court below for the determination of the pending matters before it.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my

learned brother, ABDULLAHI MAHMUD BAYERO, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A.: I agree with the judgment of my learned brother, ABDULLAHI MAHMUD BAYERO, J.C.A.
I joined him in allowing this appeal and accordingly set aside the ruling of Court below.

Appearances:

J. Odesola, Esq. For Appellant(s)

…For Respondent(s)