OGUNBOWALE v. STATE (2021)

OGUNBOWALE v. STATE

(2021)LCN/15503(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/IB/83C/2018

RATIO

CIRCUMSTANCE IN WHICH A RETRIAL MAY BE ORDERED FOR A NULLIFIED TRIAL

The well settled position of the law is that when a trial is declared a nullity a retrial is ordered if and only if the interest of justice so requires. See QUEEN vs. EDACHE (1962) 1 ALL NLR 22 and KAJUBO vs. THE STATE (supra). That is to say a retrial or fresh trial would be ordered if the interest of justice requires that the accused person, the appellant should be properly tried. Before ordering a retrial, it is mandatory that the judge examines the evidence to see the chances of success. For example, if the charge is for an offence which carries a term of years of imprisonment if found guilty and the accused person has already spent those years or more in custody awaiting trial or for trial, a retrial should not be ordered. If on the other hand the appellant was charged for a capital offence and the evidence reveals a likely conviction, a retrial or fresh trial ought to be ordered in the interest of justice. See MOHAMMED V. STATE (2013) LPELR (19822) 1 at 13-14.
In ABODUNDU vs. THE QUEEN (1959) 4 FSC 70, the applicable principles to be taken into account where a fresh trial or retrial is to be ordered were stated as follows:
“Although the rules guiding an appeal Court in ordering a re-trial are not exhaustive and may be added or modified from time to time, an appeal Court would order a retrial if it is satisfied as to the following:
1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal Court to say there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.
3. That there are no special circumstances which would make it unjust to put the accused on trial a second time.
4. That the offence for which the accused is charged and their consequences are serious in nature, and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.”
In OKEGBU vs. THE STATE (1979) 11 SC 1, the apex Court stated that matters to consider in deciding whether to make an order of retrial included the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone by the accused person going through a fresh trial, the lapse of time since the commission of the offence and its effect on the quality of the evidence and the nature of the case of the prosecution against the prisoner as disclosed in the first trial, whether substantial or not. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CRIMINAL PROCEEDING: NECESSARY STEPS TO A VALID ARRAIGNMENT

The necessary steps to a valid arraignment as required by Section 215 of the Criminal Procedure Law are well settled beyond peradventure by a plethora of cases. The Respondent alluded to the steps or stages in its brief of argument. It is the requirement of the law that for there to be a valid arraignment, the mandatory stipulations of Section 215 of the Criminal Procedure Law must be complied with, namely:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.
b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.
d) The plea of the accused shall also be instantly recorded by the Court.
The above requirements have been held to be very fundamental and renders a trial a nullity where they are not complied with. See KAJUBO vs. THE STATE (1988) 1 NWLR (PT 73) 721 at 732, EYOROKOROMO vs. THE STATE (1979) 6-9 SC 3, MADU vs. THE STATE (2012) 15 NWLR (PT 1329) 405 at 439, FRN vs. ABUBAKAR (2019) LPELR (46533) 1 at 7-16, HASSAN vs. FRN (2016) LPELR (42804) 1 at 22-24, MUSA vs. THE STATE (2016) LPELR (42812) 1 at 34-36, DAUDA vs. FRN (2017) LPELR (41910) 1 at 3-5, FRN vs. IWUAFOR (2019) LPELR (46901) 1 at 15-18, FRN vs. KAYODE (2019) LPELR (48997) 1 at 12-14 and 18, AKEEM vs. THE STATE (2017) LPELR (42465) 1 at 35-36, OKOYE vs. COP (2020) LPELR (50102) 1 at 9-11 and EZEOGWUM vs. COP (2020) LPELR (50103) 1 at 10-11.
In FRN vs. IWUAFOR (supra), it was held that the proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused person’s constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before evidence was adduced, it constitutes a flagrant non-compliance with Section 215 of the Criminal Procedure Law, which impinges on the constitutional right of the accused person to a fair hearing. Such a trial is nullity. See HASSAN vs. FRN (supra) and DAUDA vs. FRN (supra). In MUSA vs. THE STATE (supra), the appellant therein was arraigned on a three count Charge, but the Records showed that her plea was not taken in respect of Count 2 of the Charge. The apex Court held that it was a fundamental vice which vitiated the trial. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WORDS AND PHRASES: ARRAIGNMENT

APPEAL: BINIDINGNESS OF THE RECORDS OF APPEAL

It is rudimentary law that parties and the Court are bound by the Records of Appeal and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9.

The Records of Appeal is the Holy Grail of the case. Appeals are heard and decided on the basis of the Records of Appeal and an appellate Court has no jurisdiction to go outside the Records of Appeal to examine matters and draw conclusions which are not supported by the Records. See ONWUKA vs. ONONUJU (2009) 11 NWLR (PT 1151) 174, OLUFEAGBA vs. ABUR-RAHEEM (2009) 18 NWLR (PT 1173) 384 and AGBAREH vs. MIMRA (2008) LPELR (43211) 1 at 21.

It is therefore the Records, the Holy Grail of what transpired at the lower Court that we would turn to in order to ascertain if the Appellant was validly arraigned in accordance with the stipulations of Section 215 of the Criminal Procedure Law. It is necessary to underscore that a presumption of authenticity and correctness inures in favour of the Records of Appeal. See HASKE vs. MAGAJI (2009) ALL FWLR (PT 461) 887 at 904, NUHU vs. OGELE (2003) 18 NWLR (PT 852) 251 at 272 and AGBAREH vs. MIMRA (supra). It equally bears restating that compliance with the requirements of Section 215 of the Criminal Procedure Law will not be satisfied by a cursory reference in the Records that plea was taken. A valid plea and arraignment has to be in strict fidelity to the stipulations of the said Section 215 of the Criminal Procedure Law.
For purposes of clarity and ease of comprehension, it would be appropriate to give the necessary background to the arraignment, trial and conviction of the Appellant as disclosed by the cold printed Records. It is rudimentary law that when it is alleged that there has been invalid arraignment, in that the mandatory provisions of Section 215 of the Criminal Procedure Law (which was the regnant legislation at the time the trial commenced at the lower Court) had not been compiled with, all that an appellate Court needs to do is to examine the Records on the day of the arraignment to see if the arraignment is proper. It is only the Record that has to be examined. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

OLAMILEKAN OGUNBOWALE APPELANT(S)

And

THE STATE RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ogun State (the lower Court) in SUIT NO. HCT/4R/2013: THE STATE vs. OLAMILEKAN OGUNBOWALE, delivered on 19th December, 2017. The Appellant was tried and convicted on an information which preferred a one count charge of conspiracy to commit armed robbery and two counts of armed robbery, all punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

Upon the conviction of the Appellant at the end of the trial, the lower Court imposed the mandatory sentence of the death penalty. The judgment of the lower Court is at pages 37-50 of the Records of Appeal. Dissatisfied with the judgment, the Appellant appealed against the same. The original Notice of Appeal was filed on 9th February, 2018 (see pages 52-53 of the Records). However, the extant Notice of Appeal on which the appeal was argued is the Further Amended Notice of Appeal filed on 15th March, 2019 but deemed as properly filed by order of this Court made on 26th March, 2019.

In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 2nd March, 2018 and the Respondent transmitted Additional Records of Appeal on 9th March, 2020 but deemed properly transmitted on 29th April, 2020. The parties filed and exchanged briefs of argument. The Appellant’s brief of argument was filed on 15th March, 2019, but deemed as properly filed on 26th March, 2019. On its part, the Respondent filed its brief of argument on 23rd March, 2020 but deemed as properly filed on 24th June, 2020. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

In answer to a question during the hearing of the appeal, the learned counsel for the Respondent informed the Court that apart from the reference in the judgment that plea was take, there was nothing in the Records of Appeal or Additional Records of Appeal showing where plea was taken before the trial judge who tried and convicted the Appellant on the Information preferred against him.

The Appellant distilled two issues for determination in the appeal, namely:
A. Whether the absence of an arraignment of the Appellant in the lower Court before its assumption of jurisdiction vitiates the whole trial. (Distilled from Ground 4)
B. Whether the lower Court was right when it relied on the contradictory evidence of PW2 and PW3, hearsay evidence of PW1 and Exhibit A to convict the Appellant (distilled from Grounds 1, 2 & 3).

The Respondent also formulated two issues for determination as follows:-
i. Whether the trial of the Appellant was validly conducted.
ii. Whether from the quality of evidence adduced at the trial, the prosecution proved the offence of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.

The issues distilled by the parties, even though differently worded are the same in every material particular. In the circumstances, it is on the basis of the issues as nominated by the Appellant that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE NUMBER ONE
Whether the absence of an arraignment of the Appellant in the lower Court before its assumption of jurisdiction vitiates the whole trial.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant refers to Section 215 of the Criminal Procedure Act and submits that arraignment in a criminal charge is mandatory before the assumption of jurisdiction by a Court to try an accused person for the offences charged. The requirements of a valid arraignment, it was opined, must be strictly complied with in order for there to be fair trial, failing which the whole trial would be defective, unfair, null and void ab initio vide MADUKOLU vs. NKEMDILIM (1962) 1 ANLR 581 at 589-590.

It was contended that there is nothing in the Records of Appeal showing that the Appellant was arraigned at the lower Court, which is a breach of his right to fair hearing as guaranteed in Section 36 (6) of the 1999 Constitution, which has the consequence of nullifying the trial conducted. The cases of KAKIH vs. PDP (2013) ALL FWLR (PT 764) 20, FBN PLC vs. T.S.A. IND. LTD (2010) ALL FWLR (PT 537) 633 at 677, KIM vs. THE STATE (1992) 4 NWLR (PT 233) 17, ONAGORUWA vs. THE STATE (1992) 2 NWLR (PT 221) 33, MOHAMMED vs. KANO N. A. (1968) 1 ALL NLR 424, A-G RIVERS STATE vs. UDE (2006) 17 NWLR (PT 1008) 435 and FIRST BANK PLC vs. UDEOZO (2017) LPELR-43263 (CA) at 8-11 were referred to.

It was asserted that if the Appellant was properly arraigned and his plea taken in the trial Court, it would have been reflected in the Records of Appeal in order for the lower Court to have jurisdiction to proceed to trial upon its being shown that all the incidents of a valid arraignment were complied with. The cases of TIMOTHY vs. FRN (2008) ALL FWLR (PT 402) 1136 at 1151, JOSIAH vs. THE STATE (1985) 1 NWLR (PT 1) 123 among other cases were relied upon. The Appellant conclusively urged that since the Appellant was not arraigned before trial, that the judgment of the lower Court should be set aside and the Appellant acquitted.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that arraignment is the process of bringing an accused person to Court in order to formally accuse him of a crime or crimes. Section 215 of the Criminal Procedure Law, Laws of Ogun State, 2006 on the procedure for arraignment of an accused person was referred to and it was stated that the most essential aspect of arraignment is compliance with Section 36 (6) (a) of the 1999 Constitution vide DAWODU vs. THE STATE (2000) 12 SC (PT I) 1.

The Respondent referred to four stages for arraignment and that failure to comply with the stages and the provisions of Section 215 of the Criminal Procedure Law and Section 36 (6) (a) of the Constitution would render the trial null and void. The case of YAHAYA vs. THE STATE (2002) 3 NWLR (PT 754) 289 at 303 was cited in support. It was stated that from the Additional Records, plea, which complied with the legal requirements was taken before Agbelu, J.; and that when the trial commenced before Ogunsanya, J., it is reflected in the Judgment at page 40 of the Records of Appeal that the Appellant pleaded to the charge. The Respondent conceded that even though the exact date plea was taken is not contained in the Records, but that the lower Court would not in the Judgment state that plea was taken, if plea was not taken.

It was further stated that in the Respondent’s final address at page 33 of the Records, it was submitted that the Appellant pleaded not guilty. It was opined that if the Respondent’s submission in this regard was not true, the Appellant’s counsel would have responded to that issue. It was maintained that not expressly getting the Record of the day when plea was taken should not vitiate the Prosecution’s case since both parties and the Court made reference to the fact that plea was taken and that the Appellant was complicit in not raising any objection that plea was not taken and therefore cannot equitably take benefit of this. The case of ALABI vs. DOHERTY (2005) LPELR-6145 (CA) was called in aid. It was conclusively asserted that there was proper arraignment and that the trial was validly conducted at the lower Court.

RESOLUTION OF ISSUE NUMBER ONE
It is rudimentary law that parties and the Court are bound by the Records of Appeal and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9.

The Respondent has rightly conceded that there is nothing in the Records showing the exact date when the Appellant was arraigned before Ogunsanya, J., and how plea was taken and recorded upon the arraignment. I have equally gone through the Records of Appeal with the finery of a toothcomb and judicial eagle eyes and indeed there is no record of arraignment of the Appellant before the lower Court, (Ogunsanya, J.), took the evidence of the witnesses called by the Prosecution.

By all odds, the Additional Records show that plea was taken before Agbelu, J. on 15th March, 2013. But the trial and adduction of evidence in proof of the offences charged was not conducted by Agbelu, J. The main Records of Appeal shows that the matter was heard by Ogunsanya, J., and that the proceedings before her commenced on 18th October, 2016 when PW1 and PW2 testified (see pages 24-26 of the Records). There is nothing to show that the Appellant was formally arraigned before Ogunsanya, J., and his plea taken before the lower Court took the evidence of the prosecution witnesses.

Now, arraignment is a very important step in the prosecution process. It is the initial step in the prosecution of a person accused of committing a crime in a criminal trial. See YAHAYA vs. THE STATE (2002) 3 NWLR (PT 754) 289 at 307. In OKEKE vs. THE STATE (2003) 15 NWLR (PT 842) 25 at 73 Ogundare, JSC stated:
“An arraignment is not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge. All the authorities recognize that where there is no proper arraignment, there is no trial.”
In his contribution at page 95, Iguh, JSC said:
“Without a valid arraignment of the accused person, no trial in law would have commenced and, no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void.”
(Underlining supplied)
It is the minimum requirement of the law that necessary steps to a valid arraignment as provided in Section 215 of the Criminal Procedure Law must be complied with in order to ensure that the constitutional provision of fair hearing which inures in favour of an accused person, especially as it relates to Section 36 (6) of the 1999 Constitution which, inter alia, requires that every person charged with a criminal offence shall be informed promptly in the language he understands and in detail of the nature of the offence, is met. Given the paramount position which arraignment occupies in a valid criminal trial, the required standard must be complied with. Let me restate that there is nothing in the Records of Appeal on the arraignment of the Appellant before Ogunsanya, J., and on the basis of which it can be ascertained whether the requirements and stipulations of Section 215 of the Criminal Procedure Law and Section 36 (6) of the Constitution were complied with.
Evidently, after plea was taken before Agbelu, J. on 15th March, 2013, for reasons which are not shown in the Records of Appeal, the matter eventually came before Ogunsanya, J., where adduction of evidence commenced on 18th October, 2016, culminating in the judgment that was delivered on 19th December, 2017. It is the duty of the trial judge to ensure compliance with the stipulations of Section 215 of the Criminal Procedure Law. See HASSAN vs. FRN (2016) LPELR (42804) 1 at 9. The trial judge is dominis litis and ought to be in charge of the proceedings before him. The Respondent’s contention that the Appellant did not object when it was submitted in final address that the Appellant pleaded not guilty, is of no moment. Whether plea was taken or not, is a question of fact, and the submission of learned counsel cannot be proof of the fact when such a fact is non-existent. The Court is the master of its records, so it behoves the Court as master of its records to ensure and ascertain that the necessary preliminaries to commencement of hearing are met and satisfied. From the Records, it is effulgent that there is nothing to show that the Appellant was arraigned and his plea taken before Ogunsanya, J., before she took evidence, concluded hearing and delivered judgment convicting the Appellant as charged and sentenced him to death.
Let me iterate that the law remains that without a valid arraignment, no trial in law would have commenced. Furthermore, that arraignment is not a matter of mere technicality but the very important initial step in the trial of a person in a criminal charge. See OKEKE vs. THE STATE (supra). It is important to underscore that when a matter is to start afresh before another Judge, fresh plea must first be taken by the new judge before proceeding any further in the matter. See SANMABO vs. THE STATE (1967) NMLR 314 at 316-317.
The necessary steps to a valid arraignment as required by Section 215 of the Criminal Procedure Law are well settled beyond peradventure by a plethora of cases. The Respondent alluded to the steps or stages in its brief of argument. It is the requirement of the law that for there to be a valid arraignment, the mandatory stipulations of Section 215 of the Criminal Procedure Law must be complied with, namely:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.
b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.
d) The plea of the accused shall also be instantly recorded by the Court.
The above requirements have been held to be very fundamental and renders a trial a nullity where they are not complied with. See KAJUBO vs. THE STATE (1988) 1 NWLR (PT 73) 721 at 732, EYOROKOROMO vs. THE STATE (1979) 6-9 SC 3, MADU vs. THE STATE (2012) 15 NWLR (PT 1329) 405 at 439, FRN vs. ABUBAKAR (2019) LPELR (46533) 1 at 7-16, HASSAN vs. FRN (2016) LPELR (42804) 1 at 22-24, MUSA vs. THE STATE (2016) LPELR (42812) 1 at 34-36, DAUDA vs. FRN (2017) LPELR (41910) 1 at 3-5, FRN vs. IWUAFOR (2019) LPELR (46901) 1 at 15-18, FRN vs. KAYODE (2019) LPELR (48997) 1 at 12-14 and 18, AKEEM vs. THE STATE (2017) LPELR (42465) 1 at 35-36, OKOYE vs. COP (2020) LPELR (50102) 1 at 9-11 and EZEOGWUM vs. COP (2020) LPELR (50103) 1 at 10-11.
In FRN vs. IWUAFOR (supra), it was held that the proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused person’s constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before evidence was adduced, it constitutes a flagrant non-compliance with Section 215 of the Criminal Procedure Law, which impinges on the constitutional right of the accused person to a fair hearing. Such a trial is nullity. See HASSAN vs. FRN (supra) and DAUDA vs. FRN (supra). In MUSA vs. THE STATE (supra), the appellant therein was arraigned on a three count Charge, but the Records showed that her plea was not taken in respect of Count 2 of the Charge. The apex Court held that it was a fundamental vice which vitiated the trial.
In the instant case, as shown in the Additional Records, the plea of the Appellant was taken before Agbelu, J. The law is clear that upon the matter coming before Ogunsanya, J., the matter was to start de novo and a new plea ought to be first taken before Ogunsanya J., before any further steps. See ICHE vs. THE STATE (2013) LPELR (22035) 1 at 48-49 and SANMABO vs. THE STATE (supra). A cursory reference in the submission of counsel, or in the judgment that the Appellant pleaded not guilty, does not establish compliance with the necessary steps for a valid arraignment. The Records of Appeal must bear out strict compliance with the necessary steps for a valid arraignment. See EWE vs. THE STATE (1992) 6 NWLR (PT 264) 147 at 153-154. The first step to a valid trial is the taking of plea in the manner prescribed by Section 215 of the Criminal Procedure Law vide DANIEL vs. FRN (2015) LPELR (24733) 1 at 27. The constitutional guarantees of fair hearing are fundamental. The process of arraignment must, inter alia, show compliance with the constitutional right of an accused person being informed promptly in the language he understands and in detail of the nature of the offence. Furthermore, the stipulation of Section 215 of the Criminal Procedure Law requires that the Court is to be satisfied that the Charge has been read over and explained to the accused person before evidence is led. In circumstances, where the only thing in the Record of Appeal of an arraignment is the perfunctory reference that plea was taken, it does not establish compliance with the stipulations of Section 215 of the Criminal Procedure Law before the lower Court embarked on hearing in the Charge.
Without a doubt, as depicted by the Records which eloquently speaks for itself, the proceedings before the lower Court are caught by the abhorrent consequences of non-compliance with Section 215 of the Criminal Procedure Law and the attendant infringement of the right of fair hearing under Section 36 (6) of the 1999 Constitution which it occasioned. It was a nullity. It is as though there was never a trial and judgment.
It is compliance with Section 215 of the Criminal Procedure Law that gives the trial Court jurisdiction to try the accused person arraigned before it. Where the said provision has not been complied with before commencement of hearing and adduction of evidence, the trial Court has no jurisdiction to exercise. See YAHAYA vs. THE STATE (supra). The concomitance of there not being record of a valid arraignment before Ogunsanya, J., is that the lower Court acted and proceeded without jurisdiction. The fact that there is nothing to show, and this Court cannot speculate in that regard, that the Appellant was validly arraigned and his plea taken before Ogunsanya, J., started taking the testimony of the witnesses, is a violation of the provisions of Section 215 of the Criminal Procedure Law and Section 36 (6) of the 1999 Constitution. The stipulations of Section 215 of the Criminal Procedure Law are mandatory. They do not give room for exercise of discretion. Failure to comply with the provisions automatically rendered the proceedings a nullity. See LASISI vs. THE STATE (2013) LPELR (20715) 1 at 10-11. The entire proceedings were a waste of precious judicial time as the defect of having acted without jurisdiction is extrinsic to the adjudication.

Before I wrap up the consideration of this issue, let me state that I took cognisance of the stipulations of the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act. The said presumption is a rebuttable presumption. It will however not avail the Respondent where, as in this case, the Record is translucent that the plea of the Appellant was not taken before adduction of evidence before Ogunsanya, J. The presumption of regularity cannot avail where what was done at the trial Court cannot be said to be substantially regular in the face of the non-compliance with the mandatory provisions of Section 215 of the Criminal Procedure Law. See FRN vs. IWUAFOR (supra) at 11. The conflating of the foregoing is that this issue number one must be resolved in favour of the Appellant. The proceedings leading to the conviction of the Appellant as borne out by the Records of Appeal is not valid in law. The trial at the lower Court is a nullity.

Having arrived at the conclusion that the trial at the lower Court is a nullity, the effect is as if there has been no trial. The conviction of the Appellant must be set aside. But what then should be the proper order to make in the circumstances? Would it be to remit the matter to the lower Court for a fresh trial since there has been no prior trial known to law, the previous trial having been declared a nullity? A decision on whether a fresh trial is to be ordered is determined by the peculiar facts and circumstances of a matter.
The well settled position of the law is that when a trial is declared a nullity a retrial is ordered if and only if the interest of justice so requires. See QUEEN vs. EDACHE (1962) 1 ALL NLR 22 and KAJUBO vs. THE STATE (supra). That is to say a retrial or fresh trial would be ordered if the interest of justice requires that the accused person, the appellant should be properly tried. Before ordering a retrial, it is mandatory that the judge examines the evidence to see the chances of success. For example, if the charge is for an offence which carries a term of years of imprisonment if found guilty and the accused person has already spent those years or more in custody awaiting trial or for trial, a retrial should not be ordered. If on the other hand the appellant was charged for a capital offence and the evidence reveals a likely conviction, a retrial or fresh trial ought to be ordered in the interest of justice. See MOHAMMED V. STATE (2013) LPELR (19822) 1 at 13-14.
In ABODUNDU vs. THE QUEEN (1959) 4 FSC 70, the applicable principles to be taken into account where a fresh trial or retrial is to be ordered were stated as follows:
“Although the rules guiding an appeal Court in ordering a re-trial are not exhaustive and may be added or modified from time to time, an appeal Court would order a retrial if it is satisfied as to the following:
1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal Court to say there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.
3. That there are no special circumstances which would make it unjust to put the accused on trial a second time.
4. That the offence for which the accused is charged and their consequences are serious in nature, and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.”
In OKEGBU vs. THE STATE (1979) 11 SC 1, the apex Court stated that matters to consider in deciding whether to make an order of retrial included the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone by the accused person going through a fresh trial, the lapse of time since the commission of the offence and its effect on the quality of the evidence and the nature of the case of the prosecution against the prisoner as disclosed in the first trial, whether substantial or not.
The Appellant was charged with offences which carry the death penalty. He was convicted on the evidence by the lower Court at the trial which has been declared a nullity. The pertinent question in the light of this is whether on the quality of evidence, a fresh trial should be ordered. It does not seem to me that ordering a fresh trial would be merely affording the Prosecution the opportunity to fill in any lacuna in their case at the lower Court. No. As a matter of fact, the Appellant did not testify at the trial at the lower Court. The quality of the evidence adduced by the PW1 and PW2 at the trial that has been declared a nullity, which I have perused at pages 24-26 of the Records is quite substantial. The lapse of time since they testified and now is not such as to raise any question of lapse of memory, more so when from the evidence the Appellant was apprehended at the locus criminis. See also ANKWA vs. THE STATE (1969) 1 ALL NLR 133, OKAFOR vs. THE STATE (1976) 5 SC 13 and OKODUWA vs. THE STATE (1988) LPELR (2457) 1 at 21-23.
In the light of the seriousness of the offence; the prevalence of the offence; the gravity of the punishment for the offence, the death penalty; the quality of the evidence, the evidence of the PW1 and PW2 is substantial and the Appellant made a confessional statement; it is my informed opinion that in the circumstances, a fresh trial would not be prejudicial or occasion any injustice to the Appellant. It is on account of this view I hold, against the background of the settled state of the law that the initial trial where there was no valid arraignment was a nullity, that I have refrained from considering issue number two distilled by the parties.

Going into the said issue in detail may prejudice the case of the parties at the fresh trial. Suffice it to state that the evidence disclosed against the Appellant is such that to refuse to make an order for a fresh trial would occasion a greater injustice than to grant the order for a fresh trial. See EWE vs. THE STATE (supra) at 154, GANIYU vs. THE STATE (2013) LPELR (20334) (SC) or (2013) 10 NWLR (PT 1361) 29 at 41-42 and 45.
In YAHAYA vs. THE STATE (2002) 3 NWLR (PT. 734) 289 at 305 Uwais, CJN stated:
“I accept that to remain in prison custody for ten years awaiting trial is outrageous and is such a long period that should undoubtedly evoke sympathy and concern. However, the nature of the offence with which the appellant is accused is murder, is so grave that there is no offence under our laws which carries heavier sentence. As it has been stated elsewhere, justice is not for the accused person but for the victim as well. Therefore, if the circumstances of both the accused and the victim are considered together, the order of fresh trial should not in my opinion be regarded as oppressive. Besides in our laws, a sentence of 10 years is not regarded as sufficient punishment for murder.”
I kowtow. The offences charged in this matter was said to have been committed in 2011. The Appellant may have been in custody for ten years awaiting trial, but as in YAHAYA vs. THE STATE (supra), our law does not regard ten years as sufficient penalty for armed robbery. The law prescribes the supreme sanction of the death penalty.

In the light of the foregoing, the manner of resolution of issue number one makes inutile a consideration of the second issue distilled by the parties, given the order for a fresh trial which has been made. This is in order not to prejudice the fresh trial by a detailed consideration of the said second issue. The appeal accordingly succeeds and it is hereby allowed. The judgment of the lower Court embodying the conviction and sentence of death imposed on the Appellant is hereby set aside for being a nullity. The matter is remitted to the High Court of Ogun State for a fresh trial by another Judge to be assigned by the Chief Judge, not being Ogunsanya, J.

Appeal Allowed.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading before now the draft of the lead Judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, JCA just delivered and I agree with the reasons given as well as the conclusion that there is merit in the appeal.

Having read the record of appeal and the briefs of argument filed on behalf of the parties, I also agree that there is no record of arraignment of the Appellant before the lower Court (Ogunsanya J.) took evidence of the witnesses called by the Prosecution.

The consequence of absence of arraignment is as stated by the Supreme Court in OKEKE VS THE STATE (2003) 15 NWLR PART 842 PAGE 25 AT 95 where it was held thus:
“Without a valid arraignment of the accused person, no trial in law would have commenced and no matter the strength or cogency of the evidence adduced, the trial and subsequent Judgment would be rendered totally and incurably defective and consequently declared null and void.”
In the circumstance, the trial before the lower Court is a nullity.

In view of the foregoing, and for fuller reasons ably set out in the lead Judgment, this appeal in my view has merit and it is allowed by me.

I abide by the consequential Orders made in the said lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading before now the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA and I agree with him that the appeal has merit and should be allowed.

It is trite that a valid arraignment of an accused person goes to the foundation of a criminal trial.
An arraignment consists of charging the Accused Person or reading over the charge to him and taking his plea thereon. The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that an accused person understands the charge against him to enable him prepare his defence. The most essential aspect of arraignment is the constitutional requirement that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language he understands of the offence he is being tried. A valid arraignment therefore presupposes compliance with constitutional and procedural provisions. Where there is no proper arraignment, there is no trial. In other words, failure to comply with the requirement for a valid arraignment will render the whole trial a nullity.

See OLAREWAJU VS. STATE (2020) 11 NWLR (PT. 1734)1; SALISU V. FEDERAL REPUBLIC OF NIGERIA (2018) 3 NWLR (PT. 1605)24: OKO VS. STATE (2017) 17 NWLR (PT.1593) 24; DURWODE VS. STATE (2000) 15 NWLR (PT. 691)467.
In the instant appeal, the trial of the Appellant was before Ogunsaya, J., of the Ogun State High Court. There is however no evidence on record that the plea of the appellant was taken before him.
There is no evidence on record that the charge was read to the Appellant before Ogunsanya, J. There was therefore no valid arraignment. The details of the trial of the Appellant before the trial Court set out in the lead judgment shows clearly that there was no compliance with the mandatory provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 215 of the Criminal Procedure Law of Ogun State. The effect is that the trial of the Appellant was a nullity.

It is for this and the more detailed exposition in the lead judgment that I also allow this appeal. I abide by all consequential orders in the lead judgment.

Appearances:

J. D. Oloyede, Esq. For Appellant(s)

Mrs. F. E. Bolarinwa-Adebowale, Chief State Counsel, Ministry of Justice, Ogun State. For Respondent(s)