JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
ADAMU HASSAN V. FEDERAL REPUBLIC OF NIGERIA
Before the Federal High Court, Jos Division, (hereinafter referred to as the lower court), the appellant, Adamu Hassan, was charged, tried, convicted and sentenced to various terms of imprisonment for committing offences under section 518(5) of the Criminal Code Cap 38 LFN and sections 15(2) and 27(1) (c) (i) of the Criminal Code, and the Economic and Financial Crimes Act, 2004, respectively. Dissatisfied with the conviction and sentences, he appeal to this Court by filing a Notice of Appeal dated and filed on the 25th of March 2011. The Notice of appeal was amended 21st of November, 2013. There are two (2) grounds of appeal with their particulars 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."
The lower Court did not properly record the plea
of the appellant in respect of the three count charge
The three count charge was not adequately read
and explained to the appellant on the day his plea was
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 1 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.
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:
accused person should be physically in court to plea to
the charge against him
charge must be read and explained to the accused by
Registrar or any officer of the court in the language
understands to the satisfaction of the judge,
accused shall be called upon to plea to the charge, and
(iv) the plea
shall be instantly recorded by the judge.
"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 the want of such service and the court finds that he has not been duly served therewith."
Furthermore, section 36
(6) (a) of the 1999 constitution (amended) provides as
"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 is thus very clear that
for a valid arraignment of an accused person, four
essential requirements must be satisfied. These
requirements are as follows:
the accused person must be placed before the
court unfettered unless the court sees other reasons.
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
accused person shall be called upon to plead thereto,
unless there exist any valid reason to do otherwise.
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:
the accused must be placed before the court
unfettered unless the court shall see cause otherwise
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
accused shall 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
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 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:
THE HON. JUSTICE A. L. ALLAGOA
All the accused persons are present.
Ihua Maduenyi C. U.
accused persons indicate that they do not understand
Plea - Charge
is read to all the accused persons in English Language
and translated by the interpreter from English to
To Count I
all the accused persons acknowledge that they
understand the charge and plead not guilty to the
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.
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.
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:
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.
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.
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."
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 that he was satisfied that they
understood the charge is of no consequence.
"In this regard, I entirely agree with the respondent irregularity that the onus of proving and 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
"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.
I have read
before now the judgment my learned brother I. S.
BDLIYA JCA in this criminal appeal. I entirely
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 in the lead
Judgment. Consequent upon the facts of this appeal and
all the relevant authorities cited in resolving the
single issue for determination, I have no doubt that the
trial, conviction and sentence of the appellant by the
learned tried Judge were in conformity with law.
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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