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ADAMU DAUDA V. FEDERAL REPUBLIC OF NIGERIA

 

DELIVERY DATE

Friday, the 23rd May, 2014

PRACTISE AREA

1. CRIMINAL LAW

2. LITIGATION

ORIGINATING  COURT

FEDERAL HIGH COURT, JOS DIVISION (ALLAGOA, J.)

COURT

COURT OF APPEAL

CITATION(S)

CA/J/69C/2012; LN-e-LR/2014/2 (CA); (2014) LPELR-23338 (CA)

JUDGE(S)

CHIOMA E. NWOSU-IHEME, IBRAHIM SHATA BDLIYA, RIDWAN MAIWADA ABDULLAHI, JJCA

COUNSELS

A. S. Garba Esq., - for Appellant

C. Ihua-Maduenyi Esq. - for Respondent

MAIN ISSUE(S)

CRIMINAL PROCEDURE- What constitutes proper arraignment

EVIDENCE- on whom lies the burden of proof of an irregularity

FACTS SUMMARY 

The appellant and fourteen (14) other persons were arrested in Kadunu village of Mangu Local Government Area at the scene of a riot on 8th of March, 2010. They were subsequently handed over to the Police. After an investigation of the disturbances, the appellant and other persons were charged with the commission of various offences under Section 518(5) of the Criminal Code, and Section 15(2) of the Economic and Financial Crimes Commission Act, 2004 before the Federal High Court, Jos. The appellant was convicted and sentenced to various terms of imprisonment on the 16th of December, 2010. Dissatisfied with his conviction and sentencing, he appealed to this Court by filing a Notice of Appeal on the 26th of March, 2011.

HELD

That a ground of appeal with no issue distilled therefrom is deemed abandoned, and liable to be struck out.

That the failure to take the plea of the accused persons individually and also that the judge did not record that he was satisfied that they understood the charge is of no consequence.

That the onus of proving irregularity and that such irregularity did occasion a miscarriage of justice squarely lies on the appellant.

CASES REFERRED TO - :

Yerima v. State (2010) 14 NWLR pt.1213 P.25

Okoli v. State (2012) 1 NWLR pt.1281 p.385

Yusuf v. State (2011) 18 NWLR pt.1279 p.853

Kayode v. State (2008) 1 NWLR Pt.1068 P.281

Bassey v. State (2012) 12 NWLR Pt.1314 p.209

Lufadeju v. Johnson (2007) All FWLR Pt.371 P.1532

Ogunye v. State (1999) 5 NWLR pt.604 p.548

F.R.N. v. Obegolu (2006) 18 NWLR Pt.1353 P.188

Iyayi v. Eyigebe (1987) 3 NWLR Pt.65 P.523

Obasi v. Onwuka (1987) 3 NWLR Pt.61 P.364

W.S.W. v. I & S Workers Union (1987) 1 NWLR Pt.49 P.284

Dibie v. State (2007) Vol. 10 QCCR p.1 @ 29

Odeh v. FRN (2008) 13 NWLR Pt.1103 p.1

Cyril Udeh v. State (2001) 2 ACLR, 356; (1999) 7 NWLR (Pt.609)




FULL REPORT

 

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):

 

This is an appeal against the judgment of the Federal High Court, Jos Division, (hereinafter referred to as the lower Court) in charge No. FHC/J/34C/2010 delivered on the 16th of December, 2010 by ALLAGOA, J. The appellant, Adamu Dauda, was tried, convicted and sentenced to various terms of imprisonment for committing offences under section 518 of the Criminal Code Cap 38 LFN and sections 15(2) 5(1) and 27(1) (c ) (i) of the Economic and Financial Crimes Act, 2004. Dissatisfied with the trial, conviction and sentences; he appeal to this Court by filing a Notice of appeal on 25th of March 2011 which was amended and filed with leave of Court on the 21st of November, 2013. The amended notice of appeal consists of 2 grounds of appeal. They are as follows:

GROUND ONE (1)


"The learned trial judge erred in law when he assumed jurisdiction to try and convict the appellant when there was no proper arraignment of the appellant which occasioned miscarriage of justice on the appellant."

 

PARTICULARS

(a)     The Lower Court did not properly record the plea of the appellant in respect of the three count charge against him.

(b)     The three count charge was not adequately read and explained to the appellant on the day his plea was purportedly taken.

 

GROUND TWO (2)


"The decision of the lower Court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence before the court,"

 

I think it is apt, at this juncture, to state briefly, the events or circumstances that culminated to the arrest, prosecution, conviction, sentencing of the appellant and the appeal to this court. Sometime in March, 2010 there was civil or communal; disturbances in several Local Government Areas of Plateau State. A special Military Task Force was established by the Federal Government of Nigeria to monitor, control and bring to an end such disturbances in the state. On the 8th of March, 2010, the Task Force was alerted of a communal fight in Kadunu village of Mangu Local Government Area. Some Military and Policemen were dispatched to the Area. On arrival at the scene of the disturbances the appellant and others were seen armed with various weapons, such as guns, knives, bows and arrows, machetes/ axes, among others. The rioters were setting houses ablaze and destroying properties.


The appellant and fourteen (14) other persons were arrested in Kadunu village of Mangu Local Government Area at the scene of the riot. They were subsequently handed over to the Police. After an investigation of the disturbances, the appellant and other persons were charged with the commission of various offences under Section 518(5) of the Criminal Code, and Section 15(2) of the Economic and Financial Crimes Commission Act, 2004 before the Federal High Court, Jos. The appellant was convicted and sentenced to various terms of imprisonment on the 16th of December, 2010. Dissatisfied with his conviction and sentencing, he appealed to this Court by filing a Notice of Appeal on the 26th of March, 2011.


The appellant filed his brief of argument on 26th November, 2013, wherein a lone issue was distilled from ground I of the grounds of appeal for the determination of the Court. It is as follows:

 

"Whether from the record of proceedings, there was a proper arraignment of the appellant before his trial, conviction and sentence by the trial court."

 

The respondent filed a respondent's brief of argument on the 27th of November 2013, wherein the issue formulated by the appellant was adopted. The appeal was heard by this court on the 30th of April, 2014. At the hearing of the appeal, A. S. Garba Esq., adopted the appellant's brief of argument. Learned counsel informed the court that ground 2 of the grounds of appeal was abandoned, there being no issue distilled therefrom. Learned counsel then urged the court to allow the appeal and set aside the conviction and the sentences by the lower court. C. Ihua-Maduenyi Esq. adopted the respondent's brief of argument. Learned counsel then urged the court to dismiss the appeal and affirm the conviction and the sentences by the lower Court.


Garba Esq. did urge the court to strike out ground 2 of the grounds of appeal there being no issue distilled thereform. I agree with the learned counsel.
The law is trite a ground of appeal with no issue distilled therefrom is deemed abandoned, and liable to be struck out. See F.R.N. vs. Obegolu (2006) 18 NWLR Pt.1353 P.188 @ 221; Iyayi vs. Eyigebe (1987) 3 NWLR Pt.65 P.523; Obasi vs. Onwuka (1987) 3 NWLR Pt.61 P.364 and W.S.W. vs. I & S Workers Union (1987) 1 NWLR Pt.49 P.284.


Ground 2 of the grounds of appeal is hereby struck out.


The lone issue contained in the brief of argument of the appellant which has been adopted by the respondent's if resolved, would in my view, determine the appeal either way, for or against the appellant. The issue to be resolved in this judgment is therefore this:


Whether having regard to the record of the proceedings of the trial court (lower Court), there was proper arraignment of the appellant before his trial, conviction and sentence by the said court?

 

A. S. Garba Esq., of learned counsel, submitted that the appellant was not properly arraigned before the lower Court when his plea to the three counts charge was taken. Learned counsel pointed out that the lower court did not specifically state in the proceedings of the 15th of June, 2010, that the charge was read out and explained to the appellant in the language he understands to the satisfaction of the court as required by Section 215 of the Criminal Procedure Act. Learned counsel referred to the proceedings of the 15th of June, 2010 on page 67 of the record of appeal to buttress his submissions. It was counsel's further adumbration that for a valid and proper arraignment of an accused person, the record of the trial court must clearly indicate or show that:

(i)      the accused person should be physically in court to plea to the charge against him

 

(ii)     the charge must be read and explained to the accused by the Registrar or any officer of the court in the language understands to the satisfaction of the judge,

 

(iii)    the accused shall be called upon to plea to the charge, and

(iv)    the plea shall be instantly recorded by the judge.

Learned counsel pointed out that the requirements for a valid arraignment alluded to supra must co-exist, any non-compliance, would render the arraignment null and void. The case of Yerima vs. State (2010) 14 NWLR pt.1213 P.25 @ 44 - 45 was cited to reinforce the submission supra. Learned counsel further adumbrated that the proceedings of the court must clearly show that each of the counts was separately read out to the accused person before his plea is taken by the court. That the provisions of Section 215 of the Criminal Procedure Act on arraignment of an accused person must be adhered to strictly, if not, it would be void and null. That strict compliance with the requirements of section 215 of the Criminal Procedure Act have been reinforced by the provisions of section 36(a) and (b) of the 1999 constitution (as amended). The case of Okoli vs. State (2012) 1 NWLR pt.1281 p.385 @ 400 was cited in aid. Learned counsel further re-emphasized that failure to strictly comply with the provisions of section 215 of the Criminal Procedure Act would render the plea and the entire trial a nullity. The cases of Yusuf vs. State (2011) 18 NWLR pt.1279 p.853 @ 879 - 880 and Kayode vs. State (2008) 1 NWLR Pt.1068 P.281 @ 381 were relied upon to reinforce the submissions supra. Learned counsel concluded his submissions that the arraignment of the appellant on the 15th of June, 2010, not having been in accordance with Section 215 of the law is void and null. The case of Bassey vs. State (2012) 12 NWLR Pt.1314 p.209 @ 229 was cited to buttress the submissions supra. Learned counsel did urge us to hold that the appellant was not properly arraigned before the lower Court as required by section 215 of the Criminal Procedure Act, his trial, conviction and sentences are therefore null and void. That the lone issue be resolved in favour of the appellant. The entire trial be set aside for being a nullity with the consequent affect of acquitting the appellant.


Ihua-Maduenyi Esq., of learned counsel to the respondent drew the attention of the court to the Supreme Court case of Lufadeju vs. Johnson (2007) All FWLR Pt.371 P.1532 @ 1537 wherein the requirements of a valid arraignment under section 215 criminal Procedure Act was reaffirmed and contended that the learned trial judge did comply with same before the trial of the appellant. Learned counsel referred to pages 62 - 67 of the record of appeal to buttress his submissions hereinabove. On the issue of whether the charge was read and explained to the satisfaction of the judge or not, it was submitted that though such practice is desirable the failure to do so would not nullify the arraignment of an accused person. That the requirement to record that the trial judge was satisfied that the accused person fully understood the charge is subjective, not objective, therefore, unless the trial judge specially indicated that he was not satisfied that the accused person did not understand the charge, failure to record same cannot be fatal to the arraignment and plea of an accused person. The case of Ogunye vs. State (1999) 5 NWLR pt.604 p.548 @ 553 was cited to reinforce the submissions supra.


Learned counsel further adumbrated that there is nothing on record of the trial court that the learned trial judge was not satisfied that the appellant understood the charge against him. This being the case, learned counsel contended, the presumption of regularity would apply in favour of the respondent. The cases of Lockmen vs. State (1972) 5 S.C. 22; Edun vs. I. G. P. (1966) 1 All NWR p.17 and Ogunge vs. State (1999) 5 NWLR pt.604 p.548 @ 566 were cited in reinforcement of the proposition of the principles of law supra. On the issue of not taking the plea of each of the accused persons individually or separately after the counts were read out, learned counsel submitted that though such practice is desirable, failure to do so cannot render the arraignment of the appellant a nullity since there was no objection from his counsel at the time he pleaded to the charge. The case of Edem & Ors. vs. I.G.P. (1966) 1 All NWLR 21 was cited to reinforce the submissions hereinabove.

Concluding, Ihua-Maduenyi Esq., canvassed that the learned trial judge did comply with the provisions of section 215 of the criminal procedure Act when the appellant was arraignment before him on the 15th of June, 2010. That the appellant has not been able to show in his argument that he was prejudiced, embarrassed or suffered miscarriage of justice because of the alleged non-compliance with the provisions of section 215 of the Criminal Procedure Act. The case of Dibie vs. State (2007) Vol. 10 QCCR p.1 @ 29 was cited to buttress the submissions supra. Learned counsel therefore did urge the court to hold that the learned trial judge strictly complied with Section 215 criminal procedure Act on the 15th of June, 2010 when the appellant was arraigned before the lower Court. Counsel did urge the court to resolve the lone issue against the appellant and to dismiss the appeal and affirmed the judgment of the lower Court.

Section 215 of the Criminal Procedural Act. Cap. C. 41 Laws of the Federal Republic of Nigeria, 2004, provides as follows:

 

"The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see case 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 he want of such service and the court finds that he has not been duly served therewith."

 

Furthermore, section 35 (6) (a) of the 1999 constitution (amended) provides as follows:

"Every person who is charged with a criminal offence shall be (a) entitled to:

(a)         be informed promptly in the language that he understands and in detail of the nature of the offence"

 

It is thus very clear that for a valid arraignment of an accused person, four essential requirements must be satisfied. These requirements are as follows:

(i)                  the accused person must be placed before the court unfettered unless the court sees other reasons.

 

(ii)                 the charge or information shall be read over and explained to the accused to the satisfaction of the court by the registrar or any other officer of the court

 

(iii)                the accused person shall be called upon to plead thereto, unless there exist any valid reason to do otherwise.

 

(iv)               The plead shall be recorded by the trial judge.

 

The Supreme Court, in the case of Ogunye v. State (1999) 5 NWLR pt.604 P.548 @ 565 - 566, after considering the provisions of section 215 of the criminal Procedure Act of Lagos state, which are impari materia with the provisions of sections 215 of the Criminal Code of the Federation of Nigeria, reaffirmed the requirements to be met in the arraignment of an accused person before proceeding to trial by a court, per IGUH J.S.C., thus:

"it is thus clear that for a valid arraignment of an accused person, three essential requirements must be satisfied.


These consist as follows:

 

(i)                  the accused must be placed before the court unfettered unless the court shall see cause otherwise to order;

 

(ii)                 the charge of 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; and

 

(iii)                the accused shall the be called upon to plead thereto unless, of course, there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled in law to service of a copy of the information and the court is satisfied that he has in fact not been duty served therewith.

 

I need hardly add that the above requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. I may also add that they have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial and be placed before the court the court shall see cause failure to satisfy those requirements will render the whole trial incurably defective and null and void. See Sunday Kajubo v. The State (1988) 1 NWLR (pt.73_721 at 732, Samuel Eredanure v. The State (1993) 5 NWLR (Pt.294) 385. Onuoha Kalu v. The State (1998) 13 NWLR (Pt.583) 531, Azeez Okoro v. The State (1998) 14 NWLR (Pt.584) 181 etc."

 

Did the learned trial judge of the lower Court comply with the requirements of the provisions of section 215 of the Criminal Procedure Act when the appellant was arraigned before him or when his plea was taken on the 15th of June, 2010? I think it is pertinent to resort to the proceedings of the 15th of June, 2010 at this juncture to see if there was compliance with the provisions of Section 215 of the Criminal Procedure Act by the learned trial judge when the plea of the appellant was taken on the 15th of June, 2010. The proceedings of the court on 15th of June, 2010 are found on pages 67 to 68 of the record of appeal. Same are reproduced hereunder:

 

"ON TUESDAY THE 15TH DAY OF JUNE, 2010

THE HON. JUSTICE A. L. ALLAGOA

JUDGE

All the accused persons are present.

Ihua Maduenyi C. U.


A. S. Garba appearing with Aliyu Aminu for all the accused persons.
Ihua-Maduenyi: This matter is coming up for the 1st time; we humbly apply that the accused be allowed to take their plea.


All the accused persons indicate that they do not understand English.
Mr. Peter Sani is called interpreter on Oath

Plea - Charge is read to all the accused persons in English Language and translated by the interpreter from English to Hausa Language.

To Count I all the accused persons acknowledge that they understand the charge and plead not guilty to the charge.


To Count II - The 1st 3rd 5th 8th 11th 13th and 14th accused acknowledge that they understand the charge and plead not guilty as charged.

To Count III - All the accused persons acknowledge that they understand the charge and plead not guilty.


Mr. Ihua-Maduenyi: May we apply to come back on the 1st and 2nd to come back to take the trial.


Court: The adjournment allowed all the accused persons are to be remanded in custody at the Federal Prisons except, the 6th, 7th, and 8th accused persons who are to be remanded at the young person's home in Jos.

Adjourned to 28/6/2010 for trial.

 

(SGD)
JUDGE
15/6/2010." (Underlining for emphasis)


Let me consider each of the requirements for a valid arraignment of an accused person in a criminal trial as provided by section 215 of the Criminal Procedure Act vis-a-vis the proceedings of the 15th of June, 2010. The first requirement is that:

(i)      The accused person to be tried must be physically present before the court when the charge is read. On page 67 of the record of appeal is the proceeding of 15th June 2010. It has been recorded that "All the accused persons are present" See line 1 thereof.

(ii)     The 2nd requirement is that the charge preferred against the accused shall be read and explained to him in the language he understands to the satisfaction of the judge by the Registrar of court. The accused persons were asked by the court if they could understand the English Language, one Peter Sani interpreted the charge to them from the English Language to the Hausa Language. See page 67 lines 6 - 8.

(iii)    The accused person shall be called upon to plead to the charge. The appellant was called upon and his plea to each of the 3 Counts of the charge taken together with the other accused persons. See lines 8 - 14 of page 67 of the record of appeal.

(iv)    The plea of the accused person shall be recorded by the judge. All the accused persons including the appellant, pleaded to the three Counts charge and their plea was recorded on page 67 lines 8 - 14 of the record of appeal.

 

Garba Esq., of learned counsel to the appellant did argue that the learned trial judge did not state in the record of the proceedings that he was satisfied that all the accused persons understood the three (3) counts charge to his satisfaction as required by section 215 of the Criminal Procedure Act. Agreed, there was no specific recording that the learned trial judge was satisfied that the appellant understood the charge to his satisfaction, but as pointed out in Ogunye vs. State (1999) 5 NWLR Pt.604 p.548 @ 567, though it is a good practice to record that the judge was satisfied that the accused person understood the charge read out to him, the failure to do so may not be fatal in that the requirement to be satisfied, is subjective and not objective. This is what Iguh J.S.C. said on page 567 of the case of Ogunye vs. State supra:

"In as much as I fully subscribe to the view that it is good practice, to read over and explained to an accused person to its satisfaction before he pleaded thereto, my understanding of the authorities is not that unless the court so expressly record as now urged upon us by learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think, however, that the test with regard to this requirement is subjective and not objective. Clearly, where a trial judge was not satisfied with the explanation of the charge to an accused person, it seems to me that he would have directed that the same be further explained to him before his plea would be taken. Nothing of the sort happened in the present case. What happened on the contrary, was the adjournment of the case by the trial court on two hearing dates to enable the prosecution to engage an interpreter who would absolutely nothing on record to suggest that the learned trial Judge was not satisfied with the explanation of the charge to the appellants. In my view, the presumption of regularity which is clearly applicable in the present proceedings must dislodge the conjecture upon which learned counsel's submission hangs, particularly as a court of law cannot be asked to speculate on possibilities which are wholly unsupported by evidence."

 

Similarly, in the case at hand, the appellant was represented by counsel. There was no objection to the taking of the collective plea of the accused persons to the charge. The argument of Garba Esq. that the failure to take the plea of the accused persons individually and also that the judge did not record he was satisfied that they understood the charge is of no consequence.

On the contention that the there was a miscarriage of justice in view of irregularities in the arraignment of the accused persons before the lower Court
, I wish to point out that the onus of proving irregularity and that such irregularity did occasion a miscarriage of justice squarely lies on the appellant. The Supreme Court while considering the allegations of irregularity and miscarriage of justice said per Onu, J.S.C. on page 35 of Odeh v. FRN (2008) 13 NWLR Pt.1103 p.1; that:

"In this regard, I entirely agree with the respondent irregularity that the onus of proving any miscarriage of justice is entirely on the appellant”.

 

In the cause of Cyril Udeh v. State (2001) 2 ACLR, 356 at page 360 (1999) 7 NWLR (Pt.609), the Supreme Court per Iguh, JSC held that:

"The law is well settled that where as in the present case, irregularity has been alleged in a trial, the burden is on the appellant to establish that the alleged irregularity has led to substantial miscarriage of justice.  Where the appellant does not show that the presumption of irregularity has led to a miscarriage of justice. It will be assumed that there was none. See Peter Lacknan & Anor. v. State (1972) 5 SC 22" (Underlining for emphasis)

 

The appellant has not proved any irregularity in his arraignment before the lower Court. He has also not shown how a miscarriage of justice has been occasioned to his disadvantage in the proceedings of the lower Court on the 15th of June, 2010, when he was arraigned before that court. On the whole, I hold that the Lower Court had complied with the provisions of section 215 of the Criminal Procedure Act when the appellant was arraigned before it and his plea to the three (3) counts charge was taken. In the result, I resolve the lone issue against the appellant. The appeal against his trial, conviction sentences and by the lower Court on 16th of December, 2010 is hereby dismissed. The judgment of the lower Court in charge No.FHC/J/34C/2010 delivered on 16th December, 2010 is hereby affirmed.



CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.:

 

I have had the opportunity of reading in draft the Judgment read by my learned brother I.S. BDLIYA JCA in this criminal appeal. I agree with his reasoning and conclusion.

For the purpose of this concurring opinion, I shall adopt the facts of this case as set down in my learned brother's lead Judgment. Consequent upon the facts of this criminal appeal and all the relevant authorities cited in resolving the sole issue for determination, I have no doubt that the appellant has failed woefully to prove any irregularity in his arraignment before the trial Court, The trial Court complied with the provisions of Section 215 of the Criminal Procedure Act when the appellant was arraigned before the trial Court and his plea to the three Count Charge taken.

There is therefore no cogent reason or justification in interfering with the findings of the trial Court for they were arrived at upon a proper and Painstaking evaluation of credible evidence led before the Court.

 

For these reasons and the fuller reasons in the lead judgment, I also dismiss the appeal.

The judgment of trial Court including the conviction and sentence of the appellant is affirmed.



RIDWAN MAIWADA ABDULLAHI, J.C.A.:

 

I have had the privilege of reading in draft the lead judgment delivered by my learned brother IBRAHIM SHATA BDLIYA, J.C.A. I am in full agreement with the reasoning and conclusions of My Lord. I have nothing useful to add. I, too, affirm the judgment of the trial Court including the conviction and sentence of the Appellant.


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