OLUSANYA v. STATE (2020)

OLUSANYA v. STATE

(2020)LCN/15294(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/IB/114C/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

GBENGA OLUSANYA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE THE COURT RAISES AN ISSUE SUO MOTU, IT MUST CALL PARTIES TO ADDRESS IT

THE DISTINCTION BETWEEN A COURT RAISING AN ISSUE SUO MOTU AND LOOKING INTO ITS RECORD TO RESOLVE DISPUTE BETWEEN PARTIES
It is further the law that when an issue arises ex-facie the printed Record and the Court looks into it to resolve the dispute between parties, it cannot be accused of having raised the issue suo motu. This is much more so when one of the parties had referred the Court to the issue.
The Supreme Court made a distinction between the two situations in the case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 where the Supreme Court per Okoro JSC held thus:
“A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite parties to address it.
In IKENTA BEST (NIGERIA) LTD. VS. A. G. RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 AT 642 PARAGRAPHS A – C this Court per Tobi JSC of (Blessed memory) held that:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inference, the judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
See also ANYA VS. ANYA & ORS. (2020) LPELR 49386. PER OJO, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON MUST KNOW THE CASE AGAINST HIM

I wish to emphasize that a trial Court has a duty to ensure strict compliance with the provision of Section 215 of the Criminal Procedure Law. Non-compliance with the provision is tantamount to denial of fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Justice is not a fencing game. An accused must know the case against him. Anything to the contrary impugns his right to fair trial and fair hearing.
See FEDERAL REPUBLIC OF NIGERIA VS. OGUNROMBI (2019) 8 NWLR (PT. 1675)538; KAJUBO VS.THE STATE (SUPRA); IDEMUDIA VS. STATE (1999) 7 NWLR (PT. 612) 202; OKORO VS.THE STATE (2012) 4 NWLR (PT. 1290)351; UGBOJI VS.THE STATE (2018) 10 NWLR (PT. 1027)346; STATE VS. MASIGA (2018) 8 NWLR (PT. 1622)383 AND OKOYE VS. COMMISSIONER OF POLICE (2015) 17 NWLR (PT. 1488)276.
The proceedings in the lower Court which was clearly conducted in violation of Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria is a nullity. The Appellant had no notice of the case against him before the commencement of his trial. There was a miscarriage of justice and I so hold.
In NWANKWOALA VS. FEDERAL REPUBLIC OF NIGERIA (2018) 11 NWLR (PT. 1631) 397 AT 414 – 415 PARAGRAPHS H – D, the Supreme Court per Rhodes-Vivour JSC held:
“Miscarriage of justice is a failure of justice. There is miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means failure of the Court to do justice.”
The procedure adopted by the trial Court in the conduct of the trial of the Appellant falls into the above definition and I so hold. Such a trial must not be allowed to stand. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court, Abeokuta Judicial Division in Charge No. AB/9R/2012. BETWEEN THE STATE AND (1) GODWIN JOHNSON (2) AFEEZ LAWAL (3) GBENGA OLUSANYA delivered on 15th of July, 2015. The Appellant and four others were brought before the trial Court on an information with five counts bordering on conspiracy to commit armed robbery, unlawful possession of firearms, unlawful possession of ammunitions and manufacturing of firearms.

However before the commencement of trial, the prosecuting counsel withdrew the charge against two of the accused persons. Their names were struck out from the information paper leaving the Appellant and two others. The charge was subsequently amended. The charge against the Appellant and two others is as follows:
COUNT I
STATEMENT OF THE OFFENCE
Conspiracy to commit ARMED ROBBERY contrary to Section 6 (b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Laws of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
GODWIN JOHNSON, AFEEZ LAWAL AND GBENGA OLUSANYA on or about the 19th of December, 2009 at Abeokuta in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF THE OFFENCE
UNLAWFUL POSSESSION OF FIREARMS contrary to Section 3 of the Robbery and Fire Arms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004.
PARTICULARS OF THE OFFENCE
GODWIN JOHNSON AND AFEEZ LAWAL on or about the 19th day of December, 2009 along Ewekoro Expressway in the Abeokuta Judicial Division unlawfully had in your possession four (4) locally made guns.
COUNT III
STATEMENT OF THE OFFENCE
UNLAWFUL POSSESSION OF AMMUNITIONS contrary to Section 3 of the Robbery and Fire Arms (Special Provision) Act Cap R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF THE OFFENCE
GODWIN JOHNSON AND AFEEZ LAWAL on or about the 19th day of December, 2009 along Ewekoro Expressway in the Abeokuta Judicial Division unlawfully had in your possession twenty seven (27) cartridges.

It is evident from the charge that the only count of the charge against the Appellant is Count 1 which is that alleging the offence of conspiracy to commit armed robbery.

The case went on to trial with the prosecution calling five witnesses. The Appellant testified on his own behalf and called no witness. Several exhibits which include the extra judicial statement made by the Appellant were tendered and admitted in evidence.
A summary of the case of the prosecution at the trial is as follows:
At about 18.30 hours on the 19th of December, 2009, a police patrol team on patrol along the Lagos/Abeokuta Expressway saw Godwin Johnson and Afeez Lawal (the 1st and 2nd Accused persons at the trial) on an unregistered Bajay Motorcycle. One of them held a black polythene bag. They were ordered to stop by the patrol team but they did not. The team pursued them. Luck ran out on them when they ran into a trailer at the Lapeleke Junction. They sustained injuries. They were accosted by the police at the scene of accident and taken to the hospital for treatment. At the hospital, the police discovered that the polythene bag carried by Afeez Lawal contained four (4) locally made pistols and twenty seven (27) live cartridges. After their treatment, they were arrested and taken to the police station. At the police station, they made statements and confessed they were on their way to Abeokuta to meet the Appellant for a robbery operation. Their confession led to the arrest of the Appellant.

At the close of evidence on both sides, counsel filed and exchanged written addresses which they adopted before the trial Court. In a considered judgment delivered on 15th of July, 2015, the learned trial judge found the offence for which the Appellant was charged proved. He convicted him and sentenced him to death.

It is significant to note that at the trial the prosecution filed an application contemporaneously with his written address. The said application is a motion on notice for leave to amend the information paper. The application was granted on the 16th of March, 2015. It was after the grant of the application that the plea of the Appellant and his co-accused was taken.

The Appellant dissatisfied with his conviction and sentence filed an appeal to this Court. The Notice of Appeal which contains eight (8) grounds of appeal was filed on the 13th of October 2015. It is contained at pages 123-127 of the printed record.

The Appellants Brief of Argument filed on 7th of December, 2018 and deemed properly filed and served on 22nd of November, 2018 was settled by Yemi Adesina of Counsel who distilled the following issues for determination:
1. Whether the prosecution proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt as held by the trial Court (Grounds 1, 2, 3, 5 and 6).
2. Whether the trial Court was right in relying on Exhibit E, the alleged confessional statement of the Appellant and the testimony of PW3 to convict the Appellant without any consideration of the defence put forward by the Appellant (Ground 4).
3. Whether the trial Court was not wrong to convict and sentence the Appellant to death by hanging under Section 1 (2) (a) of the Robbery and Fire Arms (Special Provision) Act whereas in the information sheet he was only charged with the offence of conspiracy to commit armed robbery at Abeokuta on the 19th day of December 2009 under Section 6(b) of the Act.
The Respondent’s Brief of Argument settled by Oluwakemi Lawal of counsel filed on 9th March, 2020 was deemed properly filed on 30th April, 2020. In it, a sole issue for determination was formulated on behalf of the Respondent to wit:
“Whether the prosecution proved its case beyond reasonable doubt to warrant a conviction of the Appellant for the offence with which he was charged.”

Upon being served with the Respondent’s brief of Argument, the Appellant filed an Appellant’s Reply Brief of Argument on 4th May, 2020. I have carefully gone through the Appellant’s reply brief and I find it to be a re-argument of issues already canvassed in the Appellant’s main Brief of Argument and an attempt to fine tune same.
The law is settled that the need to file a reply brief arises when new issues are raised in a Respondent’s Brief to which the Appellant wishes to respond. See Order 19 Rule 5 (1) of the Court of Appeal Rules 2016 which provides thus:
“The Appellant may also if necessary within fourteen days of the service on him of the Respondent’s Brief file and serve or cause to be served on the Respondent a Reply Brief which shall deal with all new points arising from the Respondent’s brief.”
It is further the law that a Reply Brief should be limited to providing answer to new points raised in the Respondent’s Brief or clarification of grey areas raised by the Respondent. It has further been held in a plethora of judicial authorities that a Reply Brief of Argument should not be utilized as a forum to strengthen arguments already canvassed in the substantive brief. See IDAGU VS. STATE (2018) 15 NWLR (PT. 1641) 127; GODSGIFT VS. STATE (2016) 13 NWLR (PT. 1530) 444 and SARAKI VS. FEDERAL REPUBLIC OF NIGERIA (2016) 3 NWLR (PT. 1500) 531.
The Appellant’s Reply Brief filed in this Appeal runs foul of the settled position of the law on what a reply brief should be. It would therefore be discountenanced.

A careful perusal of all issues formulated on behalf of the Appellant in his brief of Argument reveal they can all come under the cover of the sole issue formulated on behalf of the Respondent. I shall therefore resolve this appeal based on that sole issue which is:
“Whether the prosecution proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.”

Learned counsel to the Appellant in the Appellant’s brief of Argument submitted that the prosecution had the burden to prove the offence against the Appellant beyond reasonable doubt but they failed to do so. He submitted that at page 113 of the Record the trial Court found the prosecution did not place any cogent, direct, unequivocal and compelling evidence before it to prove the allegation of conspiracy to commit armed robbery but still went on to convict the Appellant of the said offence.

He argued further that the trial Court failed to consider the circumstances under which the 1st accused person’s extra judicial statement was made before relying on it to convict the Appellant and was also wrong when it relied on the statement made by the 2nd accused person to convict him. He relied on the case of OLUSEGUN VS. OTUFALE & ORS (1968) NMLR 261 to support this argument.

He submitted further that a trial Court has a duty to consider a comprehensive account of every defence open to an accused person before coming to a decision on his guilt and urged us to hold that the trial Court was wrong when it relied on Exhibit E and the evidence of PW3 without considering the totality of the defence of the Appellant. He craved in aid the cases of AROGUNDADE VS. STATE (2009) 6 NWLR (PT. 1136) 165 and ASANYA VS.THE STATE (1991) 3 NWLR (PT. 180) PG 422.

He submitted and urged us to hold that the counsel from the Public Defender’s department, Ogun State Ministry of Justice who defended the Appellant at the lower Court did so in a shoddy manner. He pointed out that the said counsel failed to raise objection to the admissibility of the extra judicial statement made by the Appellant and the other co-accused persons.

He further referred us to Section 1 (2) (a) of the Robbery and Fire Arms (Special Provision) Act to submit that the lower Court erred when it convicted the Appellant for the offence of conspiracy to commit Armed Robbery. He argued that when correctly interpreted the provision of Section 1(2) (a) (supra) applies only when the offence for which the accused is alleged to have conspired is committed or attempted to be committed.

He submitted that the alleged armed robbery in this case was neither committed nor any attempt made to commit it. He urged us to hold that there was no connection or nexus between the offence of conspiracy to commit armed robbery yet to be committed or attempted and the death sentence passed on the Appellant. He relied on the cases of NWACHUKWU VS. THE STATE (2007) 33 WRN 168; LADO VS.THE STATE (1999) 9 NWLR (PT. 619) 369 and JOSHUA VS.THE STATE (2009) 6-7 NMLR 78 AT 79.

He finally urged us to allow this appeal as the prosecution has failed to prove the culpability of the Appellant beyond reasonable doubt.

Learned Counsel to the Respondent argued per contra and urged us to hold that the prosecution proved the case against the Appellant beyond reasonable doubt to sustain his conviction. He drew our attention to the settled position of the law that conspiracy consists of an agreement of two or more persons to do an unlawful act. He identified the essential elements to be proved for the offence of conspiracy to commit armed robbery and went on to submit that an accused person may be convicted for the offence of conspiracy even where the actual offence was not committed. He relied on the cases of IKWUNNE VS. THE STATE (2000) 5 NWLR (PT. 658) 550; ADESINA VS.THE STATE (2010) LPELR 3614 and OBIAKOR VS.THE STATE (2002) 10 NWLR (PT. 776) 612.
He further referred us to the evidence of PW1 and PW2 on how the 1st and 2nd accused persons were arrested which led to the Appellant’s arrest and submitted that the Appellant’s arrest at the filling station in Abeokuta where he was waiting for the 1st and 2nd accused persons constitute strong circumstantial evidence to sustain the charge of conspiracy.

On the retraction of statement made to the police learned counsel submitted that mere retraction does not vitiate the confession contained in a statement but will only go to the weight to be attached to it. He relied on the case of NWACHUKWU V. THE STATE (2002) 12 NWLR (PT. 782) 32 and urged us not to disturb the findings of the learned trial Judge.

He submitted further that the law is that where all ingredients of the offence of conspiracy is present as in the instant case, a Court will be right to convict an accused person for conspiracy to commit armed robbery notwithstanding the fact that the offence of armed robbery has not been committed. He relied on the case of OBASANJO-BELLO VS. FRN (2011) 10 NWLR (PT. 1256)605 and finally urged us to dismiss the Appeal.

At the hearing of this appeal on the 27th of May, 2020, Learned Counsel to the Appellant adopted his Brief of Argument and the Appellant’s Reply Brief as his oral arguments in urging us to allow the appeal. He further referred us to the Judgment of this Court in Appeal NO. CA/IB/253C/2015 BETWEEN: GODWIN JOHNSON VS. THE STATE which emanated from the same proceedings as the instant appeal.

For his part, learned Counsel to the Respondent adopted the Respondent’s Brief of Argument and urged us to dismiss this appeal and affirm the judgment of the trial Court.

As stated in the earlier part of this judgment, the Appellant stood trial along with two other accused persons viz; GODWIN JOHNSON AND AFEEZ LAWAL. GODWIN JOHNSON who was the 1st accused person was the Appellant in Appeal No. CA/IB/235C/2015 which is reported as JOHNSON VS. THE STATE (2019) LPELR- 494312 (CA). In that appeal, the issue of the validity of the arraignment of the Appellant GODWIN JOHNSON was raised and resolved. The instant appeal is an off shoot of the same proceedings that resulted in the conviction of GODWIN JOHNSON which has been declared a nullity by this Court. That proceeding form the foundation of this appeal.
In MUSA VS. THE STATE (2017) 4 NWLR (PT. 1555)187, the Supreme Court, per Ogunbiyi, JSC held as follows:
“In a nutshell, and for the determination of the propriety or not of the arraignment, I will seek to restate quickly that the observation raised by the appellant’s counsel herein is very fundamental as it touches squarely on the competence of the entire trial and also the validity of the proceedings. In other words, with an appeal being a product of a valid subsisting judgment, there can be no appeal where a proceeding before a Court is held as null and void and non-existent. Allegation of an absence of an arraignment is an error in law which goes into the jurisdiction competence of the Court. It is elementary also to restate the position of the law that jurisdictional issues can be raised at any stage of the proceedings, even if for the first time on appeal. However, this is not to alter the well settled principle of law that new issues can be raised on appeal only by seeking and obtaining the leave of Court. The nature of the error alleged by the appellant herein is that of law and the consequential effect has rendered the entire proceeding a nullity.”

The law is trite that where a Court raises an issue suo motu, it must call parties to address it. There are however exceptions to this settled position of law. One of such is where the Court raises a substantial issue of law.
See UKAEGBU & ORS. VS. NWOLOLO (2009) 3 NWLR (PT.1127)194, where the Supreme Court per Ogbuagu, JSC held as follows:
“I have also dealt with this point, because, it is now firmly established that an Appellate Court will and can, on its own Motion consider a substantial point of law arising on the record, even though it is/was not included as one of the grounds of appeal, nor referred to by the/an Appellant at the hearing before a lower Court.”
See the cases of OKOKON INUA VS. EKE E.N. BASSEY ASUQUO (1961) ANLR 576 AT 577 per Idigbe JSC of (blessed memory); OGBONNA VS. NWAGBO NWOJIJI (ALR) (1972) 2 ECSLR 359 C 361 ….”
It is further the law that when an issue arises ex-facie the printed Record and the Court looks into it to resolve the dispute between parties, it cannot be accused of having raised the issue suo motu. This is much more so when one of the parties had referred the Court to the issue.
The Supreme Court made a distinction between the two situations in the case of AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 where the Supreme Court per Okoro JSC held thus:
“A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite parties to address it.
In IKENTA BEST (NIGERIA) LTD. VS. A. G. RIVERS STATE (2008) 6 NWLR (PT. 1084) 612 AT 642 PARAGRAPHS A – C this Court per Tobi JSC of (Blessed memory) held that:
“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inference, the judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
See also ANYA VS. ANYA & ORS. (2020) LPELR 49386.
To my mind, the issue of arraignment borders on the jurisdiction of the trial Court to conduct a valid proceedings which can be raised suo motu by the Court without calling on parties to address it. In the instant appeal, the issue is ex facie the Record of Appeal. The validity of the proceedings from which the appeal emanated is germane and fundamental to the resolution of the appeal and goes to its very foundation. I shall therefore go on to consider same.

The instant appeal emanated from the Ogun State High Court. Section 215 of the Criminal Procedure Law Cap 30 Laws of Ogun State provide as follows:
“The person tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.”
The object of the above provision which enjoys the support of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 is to ensure that an accused person understand the charge against him so he can adequately prepare his defence.
Section 36(6) of the Constitution provides as follows:
“36(6)
Every person who is charged with a criminal offence shall be entitled to-
(a) Be informed promptly in the language that he understands and in detail of the nature of the offence.”
It follows therefore that for there to be a valid arraignment, strict compliance with the provision of Section 215 of the Criminal Procedure Law is mandatory.
The requirements of a valid arraignment have been enumerated by the Courts in a plethora of authorities to be:
(i) The Accused Person shall be placed before the Court unfettered;
(ii) The charge or information paper shall be read and explained to the Accused Person in the language he understands to the satisfaction of the Court by the registrar or any other officer of Court;
(iii) The Accused Person shall be called upon to plead to each charge;
(iv) The plea of the Accused Person shall be recorded instantly.
See AZOGOR VS. STATE (2019) 1 NWLR (PT. 1654) 491; SALISU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 3 NWLR (PT. 1605)161; AKINLOLU VS.THE STATE (2019) 5 NWLR (PT. 1665)343; KAJUBO VS.THE STATE (1988) 19 NSCC (PT.I)475; MOHAMMED VS. THE STATE (2015) 10 NWLR (PT. 1468)496 AND MADU VS.THE STATE (2012) 15 NWLR (PT. 1324)405.
It would be expedient at this stage to go into the Record of appeal to determine whether or not the lower Court complied with the provision of Section 215 of the Criminal Procedure Law. I shall endeavour to reproduce the relevant part of the proceedings of the trial Court from the Record of Appeal.
The proceedings before the lower Court commenced on 28th of May, 2012. It is at page 40 of the Record. It is as follows:
BETWEEN:
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st-3rd Accused present
4th and 5th Absent
Mrs. O.A. Lawal (Principal State Counsel) for the State
O.O. Bakare for 3rd Accused
1st and 2nd accused have no lawyer.
Court: The case is adjourned to the 20th of June, 2012 for mention. The office of Public Defender is directed to provide legal representation for the accused persons except the 3rd.
SGD
A.A. Akinyemi
JUDGE
28/05/12.
After this day, the trial suffered several adjournments. See pages 41 – 50 of the Record.
At page 41 of the Record, the proceeding for 20th of June, 2012 reads thus:
BETWEEN SUIT NO. AB/9R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st, 2nd and 3rd Accused present
4th and 5th Accused absent.
Mrs. O.A. Lawal (Principal State Counsel) with her
Mrs Y. Bolaji and Mr. B.W. Bazunu State Counsel for the State
M. Oniyide (Mrs) PPD, for the 1st and 2nd accused persons.
Lawal: 4th accused is an old woman and ill, 5th is also at the Magistrate Court we will bring them on the next day.

Court: Case adjourned to 11th July, 2012. State urged to ensure all accused persons are present.
SGD
A.A. AKINYEMI
JUDGE
20/06/12
Proceeding conducted on 11th of July, 2012 is at page 42 of the Record. It reads as follows:
BETWEEN: SUIT NO. AB/9R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
Accused Persons absent
Mrs. O.A. Lawal Principal State Counsel for the State
O.O. Bakare for the 3rd Accused.
Lawal: I don’t know why the accused persons are absent. Ask for adjournment.
The process server confirms the Court that only 3 accused out of 5 are in custody, the one granted bail by the Magistrate Court has jumped bail, while the one granted bail has jumped bail, while the one granted bail by the Police is ill.
Court: The process server and IPO are directed to get the accused persons or their sureties to the Court on the next day. Case is adjourned to 16th October, 2012 for hearing.
SGD
A.A. AKINYEMI
JUDGE
11/07/2012
At page 43 of the Record, the proceeding for 16th of October, 2012 is as follows:
BETWEEN: SUIT NO. AB/9R/2012
THE STATE

<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> VS.
GODWIN JOHNSON & OTHERS
1st-3rd Accused person present
4th and 5th accused absent
Mrs. O.A. Lawal (Principal State Counsel) for the State
No Counsel for the accused person
Court: Where are the 4th and 5th accused persons?
Lawal: They were expected to be here today. If by next date they are still not available for arraignment, we will apply to proceed with these ones.
Court: The case is adjourned to the 6th of November, 2012 for mention. The Citizens Right is directed to provide Counsel for the accused persons.
SGD
A.A. AKINYEMI
JUDGE
16/20/12
The proceedings for 22nd of January, 2013 at page 44 of the Record is as follows:
BETWEEN: SUIT NO. AB/9R/2012
THE STATE
VS
GODWIN JOHNSON & OTHERS
1st-3rd Accused present
Miss P.A. Onamade (State Counsel) for the State- Says she does not know the Counsel handling the matter. Only she saw it on the list.
Court: The case is adjourned to 11th March, 2013 for mention.
SGD
A.A. AKINYEMI
JUDGE
22/01/13
The proceeding for 8th of March, 2013 is recorded at page 45 of the Record thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

BETWEEN: SUIT NO. AB/9R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st-3rd Accused persons present
Mr. O.A. Lawal (Principal State Counsel) for State
Mrs. I.D. Aremu (APD) for 1st and 2nd Accused persons.
Lawal: Asks for adjournment to decide to withdraw against the 4th and 5th Accused Persons
Aremu: Not objecting
Court: The case is adjourned to 12th April, 2013 for mention.
SGD
A.A. AKINYEMI
JUDGE
08/03/13
At pages 46-47 of the Record is the proceeding for 12th of April, 2013. It is as follows:
BETWEEN SUIT NO. AB/9R/2012
THE STATE
VS
GODWIN JOHNSON & 4 OTHERS
1st-3rd Accused persons present
4th accused person absent
Miss P.A. Onamade State Counsel for the State
Mrs. I.A. Aremu APD for the 1st and 2nd Accused person
Debo Soetan for the 3rd Accused Person
Onamade: The counsel handling the case Mrs. Lawal is indisposed and only called me this morning to hold her brief. I don’t even have the file.
Aremu: Protests the attitude of the Prosecution a they have conjured to give the same excuse. Wants the matter struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Soetan: I am new in the case. I am asking that the prosecution supplies us with the proof of service.
Court: The state has been delaying the prosecution of this case. I will be giving them the very last adjournment to either proceed with those 3 accused persons or withdraw the charge, otherwise the Court will strike out the charge. This case is adjourned to Friday the 9th of May, 2013 for mention.
SGD
A.A. AKINYEMI
JUDGE
12/04/13.
Prosecution is directed to furnish the defence counsel with the proof of evidence.
SGD
A.A. AKINYEMI
JUDGE
The proceeding conducted on 9th of May, 2013 is at page 48 of the Record. It is as follows:
BETWEEN SUIT NO. AB/9R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st, 2nd and 3rd Accused persons present
4th and 5th Accused persons present
Mrs. O.A. Lawal Principal State Counsel for the State
Mrs. I.A. Aremu APD for the 1st, 2nd, 3rd Accused present
Lawal: I have the instruction of the DDPP to withdraw the charge against the 4th Accused person she was granted police bail on 31st December, 2009 when she was 75 years old. Since then, the process server has not been able to trace her. The 5th was granted bail at Magistrate Court on 25th January, 2010. He has jumped bail. Asks for issuance of a bench warrant against him.
Court: The charge against the 4th Accused having been withdraw (sic), name is hereby struck out of this charge.
Bench warrant is hereby issued for the arrest of the 5th Accused person, Rasheed Adeyemi, to be brought before this Court by the next adjourned date.
Aremu: opposes adjournment
Court: I will again give the prosecution a little opportunity in view of the order of Bench warrant just issued against the 5th accused. The case is adjourned to 27th June, 2013 for hearing.
SGD
A.A. AKINYEMI
JUDGE
09/05/13
The proceeding for 27th of June, 2013 at page 49 of the Record is as follows:
BETWEEN SUIT NO. AB/9R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st-3rd Accused persons present
5th Accused person absent
Mrs. O.A. Lawal Principal State Counsel for the State
Mrs. I.A. Aremu APD for the 1st, 2nd and 3rd Accused persons.
Lawal: The bench warrant ordered on the 5th accused is yet to be executed. Asks for adjournment.
Aremu: Not opposing.
Court: The case is adjourned to 4th July 2013. The order of bench warrant against the 5th Accused person, Rasheed Adeyemi is hereby reserved.
SGD
A.A. AKINYEMI
JUDGE
27/06/13
The proceeding conducted by the trial Court on 17th of January, 2014 as recorded at page 50 of the Record is as follows:
BETWEEN SUIT NO. AB/9R/2012
THE STATE
VS
GODWIN JOHNSON & OTHERS
1st-3rd Accused person
4th and 5th Accused absent
O.A. Lawal Principal State Counsel with
V.I. Oloye Esq. State Counsel for the State
Mrs. I.A. Aremu State Public Defender for the accused persons
Lawal: We still have not got the 5th accused- the process server is here to explain
Process server: Inspector Olayide Lawal says: I have tried to get the 5th accused but I couldn’t locate his address, but I have contacted the IPO who is even here today, and has promised to take me to the place.
Lawal: Asks for adjournment
Aremu: Pleads that this should be the last adjournment
Court: The case is fixed for definite hearing on 12th and 13th February 2014
SGD
A.A. AKINYEMI
JUDGE
17/01/14
The trial never got off the ground until 12th of February, 2014. An excerpt of the proceeding of 12th February, 2014 as recorded at page 51 of the Record is as follows:
BETWEEN SUIT NO. AB/4R/2012
THE STATE
VS.
GODWIN JOHNSON & OTHERS
1st, 2nd and 3rd accused persons present
5th Accused absent
Mrs. O. A. Lawal Principal State Counsel with V. Oloye State Counsel for State
Mrs. I.A. Aremu- SAPD for the accused persons.
Lawal: We have not being (sic) able to get the 5th accused served as he was on bail. I have the instruction of the DPP to withdraw against the 5th accused.
Court: The name of the 5th accused Rasheed Adeyemi is hereby struck out.
Lawal: We will amend the charge later. I am prepared to open the case the (sic) now.
Lawal calls PW1-
PW1 affirms testifies in English Language.
-PW1-
My name is CSP Adebowale Lawal, PSC. I am presently the DPO Sagamu Police Station. As at 19th December, 2009, I was DPO Ewekoro- I was CSP.
On that day, at bout 6:30pm I was on patrol leading a team of policemen along the Lagos-Abeokuta road. I sighted two (2) man (sic) on an unregistered Bajaj motorcycle we…”

The proceedings of 12th February, 2014 continued at page 52 of the Record and spanned through to page 58. The prosecution called four witnesses i. e PW1 – PW4 who were duly cross examined and discharged thereafter. The charge was not read to the Appellant and his plea was not taken.
From the record, it was after the close of evidence and filing of Counsel Final Written Addresses that the prosecuting Counsel applied to amend the Information. The application was granted. The Charge was thereafter read to the Appellant and the other accused persons i.e. GODWIN JOHNSON AND AFEEZ LAWAL and their respective pleas taken. This was on the 16th of April, 2015. See pages 101- 102 of the Record.
The law is settled that the plea of an accused person completes an arraignment. It is at that point that he admits or denies the charge by pleading either “guilty” or “not guilty”. It is the point at which he joins issue with the prosecution and the matter proceeds to hearing.
This is not what transpired at the trial of the Appellant. In the case of JOHNSON VS. THE STATE (Supra) a case which emanated from the same proceedings as the instant appeal. I said:
“I am not unaware that the plea of the Appellant was taken after the charge was amended. This was after the prosecution had closed its case and the Appellant had concluded his defence. The plea of the Appellant taken after the conclusion of his trial does not satisfy the mandatory requirements of Section 215 of the Criminal Procedure Law of Ogun State. The Law is that the plea of an accused person shall be taken before the commencement of his trial. It is when the plea has been taken that issues are said to be joined at the trial Court. See ADEYEMI VS. THE STATE (2013) LPELR 20337 AT 18-19 PARAGRAPHS C-A; OLAOLU VS. FRN (2015) LPELR 24778 AT 20 PARAGRAPHS A-D.”
I still stand by the above and hold that the plea of the Appellant that was never taken before but only after close of evidence is contrary to law.
I wish to emphasize that a trial Court has a duty to ensure strict compliance with the provision of Section 215 of the Criminal Procedure Law. Non-compliance with the provision is tantamount to denial of fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Justice is not a fencing game. An accused must know the case against him. Anything to the contrary impugns his right to fair trial and fair hearing.
See FEDERAL REPUBLIC OF NIGERIA VS. OGUNROMBI (2019) 8 NWLR (PT. 1675)538; KAJUBO VS.THE STATE (SUPRA); IDEMUDIA VS. STATE (1999) 7 NWLR (PT. 612) 202; OKORO VS.THE STATE (2012) 4 NWLR (PT. 1290)351; UGBOJI VS.THE STATE (2018) 10 NWLR (PT. 1027)346; STATE VS. MASIGA (2018) 8 NWLR (PT. 1622)383 AND OKOYE VS. COMMISSIONER OF POLICE (2015) 17 NWLR (PT. 1488)276.
The proceedings in the lower Court which was clearly conducted in violation of Section 215 of the Criminal Procedure Law and Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria is a nullity. The Appellant had no notice of the case against him before the commencement of his trial. There was a miscarriage of justice and I so hold.
In NWANKWOALA VS. FEDERAL REPUBLIC OF NIGERIA (2018) 11 NWLR (PT. 1631) 397 AT 414 – 415 PARAGRAPHS H – D, the Supreme Court per Rhodes-Vivour JSC held:
“Miscarriage of justice is a failure of justice. There is miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It means failure of the Court to do justice.”
The procedure adopted by the trial Court in the conduct of the trial of the Appellant falls into the above definition and I so hold. Such a trial must not be allowed to stand.

In the circumstance, I find merit in this appeal. It succeeds and it is allowed. The judgment of the trial Court i.e. Ogun State High Court in Charge Nos. AB/9R/2012 delivered on 15th July, 2015 as it concerns the Appellant, Gbenga Olusanya is hereby set aside. Consequently his conviction and sentence are hereby quashed. The Appellant is hereby discharged.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA just delivered.

I agree entirely with the reasoning and conclusion therein. I adopt same as mine with nothing to add.

HARUNA SIMON TSAMMANI, J.C.A.: I read the draft of the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

The record of appeal in this appeal indicate without doubt, that there was no valid arraignment of the Appellant as prescribed by Section 215 of the Criminal Procedure Law of Ogun State; and Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999. The requirement of a valid arraignment is a jurisdictional issue for where there is no valid arraignment, the trial Court will lose the jurisdiction to hear and determine the case. See Akinlolu v. State (2018) All FWLR (pt.927) 1; Federal Republic of Nigeria v. Akeem Ogunrombi (2019) LPELR- 47560 (SC) and Federal Republic of Nigeria v. Mohammed Abubakar (2019) LPELR- 46533 (SC). Thus, failure to comply with any of the requirements of a valid arraignment, will render the whole trial a nullity. In the instant case, the failure of the trial Court to take the plea of the Appellant before evidence was gone into was a fundamental breach which rendered the trial a nullity.

It is for the above reasons and the detailed reasons given by my learned brother in the lead judgment that I agreed that this appeal is meritorious. It succeeds and is accordingly allowed. I abide by the consequential orders made in the lead judgment.

Appearances:

Yemi Adesina, with him, Oladimeji Olabode and Deborah Majekodunmi For Appellant(s)

A. Lawal (Mrs.) Asst. Director Ministry of Justice, Ogun State For Respondent(s)