Lawan Sani V. The State (1999)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

The appellant was charged with rape punishable under Section 283 of the penal code in that he had sexual intercourse with a four year old girl. At the trial the prosecution called three witnesses. At the conclusion of the evidence for the prosecution, the defence made a no case submission which was overruled by the trial judge. The appellant then gave evidence on his own behalf. He did not call any other witness. After hearing submission of counsel the trial judge, in a reserved judgment, found the appellant guilty of committing the offence. The appellant was convicted and sentenced to Ten (10) years imprisonment.

The appellant was aggrieved with this decision, he therefore appealed to this Court. The Notice of Appeal contained two grounds of appeal. The appellant filed his brief of argument in which he identified two issues for the determination of the appeal. The respondent also filed a brief. In the respondent’s brief two issues were formulated for determination. At the hearing of the appeal both counsel adopted their respective brief of argument.

It was during the course of writing this judgment that I discovered that nowhere in the record of appeal was the appellant called to enter his plea. I therefore asked the Registrar of this court to write to the Two (2) counsel to come and address us on the effect of not entering a plea on a criminal trial. Counsel for the appellant appeared while the respondent’s counsel even though he was served failed to appear. Mr. Ibikunle learned counsel for the appellant submitted that Section 187(1) of the criminal procedure code provided that a plea is mandatory. He also submitted that Section 187(1) is similar to the provision of Section 215 of the Criminal Procedure Act and stated that in Effiom v. The State (1995) 1 NWLR (Pt. 373) 507; Vol. 28 LRCN 320 at 442, it was held that this provision is mandatory and not directory and must be strictly complied with. He submitted that without a proper plea, the trial is a nullity. He also referred to Section 33(6)(a) of the 1979 Constitution. He referred to Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721; (1988) Vol. 1 NSCC 275 at 278and submitted that the trial was a nullity. He also submitted that the appellant should be set free because it would be oppressive if he is put on trial again. He urged us to allow the appeal.

Section 187 of the Criminal Procedure Code provides:

“187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.

(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused.”

It could be seen that the mandatory requirements of Section 187 of the CPC stipulates that:

(a) The accused person must be brought before the court.

(b) The charge must be read out in court and explained to him and

(c) He shall be asked whether he is guilty or not guilty of the offence charged.

These conditions are mandatory. The accused person is properly and validly arraigned before the court only when these conditions are complied with. Also Section 33(6) of the Constitution of the Federal Republic of Nigeria 1979 provides as follows:

“Every person who is charged with a criminal offence shall be entitled:

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