Sunday Kajubo V. The State (1988)

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B. WALI, J.S.C. 

The Appellant, Sunday Kajubo was tried by Oshodi, J., of the High Court of Lagos State, Ikeja Judicial Division on a two-count charge of robbery punishable under section 402(2)(a) of the Criminal Code Law, (Cap. 31), Laws of Lagos State. He was found guilty and sentenced to death. His appeal against the conviction and sentence to the Court of Appeal, Lagos Division was also dismissed. He has now further appealed to this Court.

Brief of arguments were filed and exchanged for and against the only ground of appeal in which the competence of the trial was attacked. It reads as follows:

“The trial, conviction and sentence passed on the appellant by the learned trial judge are a nullity because the accused was not arraigned-in accordance with the mandatory provisions of section 215 of the Criminal Procedure Law, Cap 32, Laws of Lagos State”.

In the brief of arguments filed on behalf of the appellant, the issue for determination as couched by learned Counsel is-

“Are the trial, conviction and sentence passed on the appellant a nullity in view of the omission to comply with the express provisions of section 215 of the Criminal Procedure Law, Cap 32, the omission being to state to the accused the offence for which he was charged and to explain it to him”

He submitted that the arraignment of an accused before any court for trial on a criminal charge consists of reading over and explaining the charge to him followed by the taking of his plea. He referred this Court to page 15 where the purported plea of the appellant on the charge as originally filed, and also pages 21-22 where his purported plea on the charge as amended were respectively recorded. He cited the cases of Eyorokoromo v. The State (1979) 6-9 SC. 3 and Macfoy v. United Africa Co. Ltd. (1961) 3 ALL E.R. 1162 to support his submissions. He finally urged the court to declare the proceedings a nullity and set the appellant free.

In reply, learned Counsel for the Respondent conceded the point raised by appellant’s counsel that the trial is a nullity for non-compliance with provision of section 215 of the Criminal Procedure Code Law, thus leading to the contravention of section 33(6)(a) of the 1979 Constitution, but urged the Court, on the authority of Abodundu And Ors. v. The Queen (1959) 4 F.S.C. 70 at 73 to order a fresh trial since there was no trial.

Section 215 of the Criminal Procedure Law (Cap 32) 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 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.”

For a valid and proper arraignment of an accused person, the following conditions as contained in the section mentioned (supra), must be satisfied:

1. He shall be placed before the court unfettered unless the court shall see cause to otherwise order;
2. 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
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in section 100 of the Criminal Procedure Law).

Failure to comply with any of these conditions will render the whole trial a nullity. See: Eyorokoromo v. The State (1979) 6-9 SC.3.

I shall now proceed to examine the parts of the record where the purported arraignment of the appellant and the taking of his pleas were recorded.

On 25th August 1981 at page 15 (from line 22) the court proceedings were recorded as follows: