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Abubakar V. Frn (2020) LLJR-SC

Abubakar V. Frn (2020)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

My Lords, this is one of those appeals, disingenuously, agitated by counsel with full knowledge of its futility. I will explain this further in the course of this short judgment.

The appellant was arraigned before Allagoa, J., at the Federal High Court, Jos Division, on July 29, 2011. Together with one Dauda Abubakar, they faced a three-count charge of offences contrary to, and punishable under Section 518 of the Criminal Code Act, Cap. C38 Laws of the Federation, 2004 and Section 15 of the Economic and Financial Crimes Commission Act, 2004.

Following the appellant’s not guilty plea, (he was the second accused person], the case went on trial – a trial which ended in his conviction and sentence. Having lost his appeal at the Court of Appeal, Jos Division, on the sole ground of improper arraignment at the trial Court, he, finally, approached this Court with the same complaint of improper arraignment. Against this background, it would not serve any useful purpose detailing the factual background.

For the purpose of the sole issue in this appeal, only the record of proceedings on page 79 of the record would suffice. The record reads thus:

Court: read the charge.

Charge is read to the accused persons in English Language and interpreted from English to Hausa and the accused persons acknowledge they understand the charge.

To Count 1, first and second accused persons plead not guilty as charged.

To Count 11, first and second accused persons plead not guilty as charged.

To Count 111, first and second accused persons plead not guilty as charged.

As already indicated above, having lost his appeal at the Court of Appeal, Jos Division, on the sole ground of improper arraignment at the trial Court, he finally approached this Court with the same complaint of improper arraignment. His sole issue was framed thus:

Whether from the record of proceedings, there was a proper arraignment of the appellant before his trial, conviction and sentence by the trial Court for the lower Court to have affirmed same?

Arguments on the Sole Issue

Appellant’s Contention

At the hearing of this appeal on October 17, 2019, Steve Onyechi Ononye, learned counsel for the appellant, adopted the brief filed on November 9, 2017. His arguments on paragraphs 4.1 to 4.9, pages 4 to 7 of the said brief, centred on the alleged impropriety of the arraignment of the appellant. He cited Section 215 of the Criminal Procedure Act, Cap. 80, Laws of the Federation of Nigeria, 2004.

He also cited such cases like Yerima v. State (2010)14 NWLR (Pt. 1213) 25, 44-45; Okoli v. State (2012)1 NWLR (Pt. 1281) 385,400; Yusuf v. State (2011) 18 NWLR (Pt. 1279) 853, 879 – 880; Kayode v. State (2008)1 NWLR (Pt. 1068) 281, 302; Odeh v. F.R.N.(2008)13 NWLR (Pt. 1103) 1, 35; Yakubu v. State (2012) 12 NWLR(Pt. 1313) 131. He urged the Court to set aside the conviction and sentence of the appellant.

Respondent’s Arguments

On his part, Edoka Onyeke, learned counsel for the respondent, adopted the respondent’s brief filed on December 5, 2017. He devoted paragraphs 4.1 – 4.16, pages 4 – 16 to this issue. In sum, he contended that once an accused person pleads to a charge before the Court without any objection, it presupposes that he understands the charge preferred against him. He cited several cases. He urged the Court to dismiss the appeal. Resolution of the Sole Issue

As it is well-known, a plea of guilty is valid, if made in a very unambiguous and unequivocal way; and the same is received by a trial Court or Tribunal not labouring under the misapprehension of what the law is all about, Nkie v. F.R.N. (2014) LPELR -22877 (SC) 25, E-F; (2014) 13 NWLR (Pt. 1424) 305; Amanchukwu v. F.R.N. (2009) 8 NWLR (Pt. 1144) 475; Okewu v. FRN (2005) All FWLR (Pt. 254) 858, (2012) 9 NWLR (Pt. 1305) 327; Kpoobari v. F.R.N.(2016) LPELR -40010 (SC) 16 -17, (2016) 13 NWLR (Pt. 1528)81.

I will reproduce the views of Karibi-Whyte, JSC, in Idemudia v. State (1999) LPELR -1418 (SC), (1997) 7 NWLR (Pt. 610) 202 in extenso to demonstrate that this Court has, consistently, laid down guidelines for proper arraignment. According to His erudite Lordship:

A valid trial is posited on the fact of a valid arraignment. An arraignment is ad rationem ponere, that is, calling on the accused (person) to reckoning for the allegations of the offences against him. The laws of this country have made adequate provision for the protection of the interest of the accused (person) and the citizens in the proper administration of justice. Accordingly the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional and procedural requirements. There is the constitutional requirement in Section 33(6) (a), and the provision of Section 215 of the Criminal Procedure Law …

See also  The State V. Musa Danjuma (1997) LLJR-SC

The common feature in (the) provisions is the use of the expression ‘shall’ to define the duty required. Thus, expressing in mandatory terms, the obligation of the Court to observe the requirements prescribed towards ensuring a valid arraignment. It does appear from the (said) provisions that every person charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence. Thus, there is a duty on the Court to observe that:

(a) The accused is brought before it unfettered, unless it sees cause to order otherwise.

(b) To read and explain to the accused arraigned the charge against him in the language he understands.

(c) Satisfy itself that the charge had been read and explained to the accused in the language he understands. The correct observation of and compliance with these provisions by the Court on arraignment has been one of constant difficulty and occasionally of irritation. Counsels (sic) to appellants have often criticized the practice adopted by judges in determining what transpired on arraignment. There is no doubt that an appellate Court can only proceed on what is apparent on the record. This is so where the record can ex facie disclose compliance as, required by law.

A literal interpretation of the above provisions will clearly require that on arraignment, the Court should state that the accused (person) was brought before it unfettered. That the charged was read and explained to him in the language he understands. This will be even where the accused (person) understood the English language, the language of the Court by which the charge was read to him. The Court will be expected to record that the accused understood what was read and explained to him. The Court should also record its satisfaction of the exercise of the procedure on arraignment.

​It is not disputed that it is perfectly useful and necessary for the Court to record the fact of arraignment and that the charge was read to the accused in the language he understands where this is different from the language of the Court, which is English language. Where the accused person understands the language with which the charge was read it becomes unnecessary to record that fact specifically. It seems to me not possible for the Court to know whether the accused understood the charge read it explained to him. Even though he may appear to do so. It is good practice to ask the accused the question whether he understood the charge as read and explained, and to record his answer. It does not seem to me that the omission to do so by itself merely could constitute a non-compliance with the constitutional and procedural requirements, unless it is the lack of understanding of the read that is apparent from the record of the trial. Finally the satisfaction of the Court on the compliance with the procedure on arraignment is not to me a requirement which need be express on the record. It is a requirement for the guidance of the trial Court which should feel satisfied that the procedure has been complied with …

As comprehensive as these requirements are they appear to ignore the situations where the accused is defended by counsel, who is entitled to take objection in limine for the no-observance of these conditions. The three requirements prescribed must co-exist.

The fundamental issue in the matter of arraignment is that the charge or information shall be read over and explained to the accused person in the language the understands before the plea is taken. The most appropriate time for taking any objection to the plea of an accused person which is in contravention of the constitutional and procedural provisions is before trial- see Egbedi v. The State (1981) 11- 12 SC 98. This does not preclude taking objection, thereafter as Kajubo v. State (1988) 1 NWLR (Pt. 73) 721 and Eyorokoromo v. State (1979)6-9 SC 3 and other cases conclusively decided. Precious time is saved by an early intervention and justice will be done if the objection is sustained.

​There appears to be a fairly rigid and inflexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally, the Courts should not ignore the nature of the rights protected and the preservation of the Courts in the discharge of their sacred and solemn duty to do justice. There is clearly observable the distinction between a matter of procedure that affects substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of the case. In the latter case it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment. However. where there is counsel in the case defending an accused person, the taking of the plea by the Court it ought to be presumed in favour of regularity namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken omnia praesumuntur rite etsolemniter esse acta. Accordingly, in the absence of proof to the contrary the presumption prevails. See also Section 150(1) Evidence Act. It does not seem to me that the requirement that the judge should be satisfied that the charge has been read and explained to the accused is one which need to appear on the record and the non-appearance of which affects the justice of the case. It is good practice to so indicate. It is sufficient on the record as a whole if it could be gathered that the accused understood the nature of the charge.

See also  Obaji Aga V. The State (1976) LLJR-SC

The essential purpose of the enabling provisions is to ensure not only that the accused person understands the charge against him but also appreciates its nature before his plea is taken – see Effiom v. The State (1995) 1 NWLR (Pt. 373) 507. (Italics supplied for emphasis)

This Court has maintained this position ever since. As I had occasion to observe in Blessing v. Federal Republic of Nigeria (2015) LPELR – 24689 (SC) 58 – 60, (2015) 15 NWLR (Pt. 1475)1 observations I adopt as part of my reasons in this judgment:

It is rather strange that up till now, this Court is still being inundated with appeals woven around the interpretation of the requirements of Section 215 of the Criminal Procedure Act, even in the face of an avalanche of its decisions on these requirements. Only some of these will be cited here, Josiah v. State (1985)1 NWLR (Pt. 1) 125; (1985)1 SC 406; Kajubo v. State(1988)1 NWLR (Pt. 73) 721, 731; (1988)3 SCNJ (Pt.1) 1179; Ebem v. State (1990)7 NWLR (Pt. 160) 113; Idemudia v. State (1999)5 SCNJ 47; Onuoha Kalu v. The State (1998) 13 NWLR (Pt. 583) 531; Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385; Omokuwajo v. FRN (2013) LPELR -20184 (SC); (2013) 9 NWLR(Pt. 1359) 300: Sharfal v. The State (1992) LPELR-3038 (SC) 11.

Others include: Ogunye v. The State (1999)5 NWLR (Pt. 548, 567; Ewe v. The State (1992) LPELR -1179(SC), Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30; Lufadeju and Anor v. Johnson (2007) LPELR – 1795(SC), Olabode v. The State (2009) LPELR-2542 (SC), Amako v. The State (1995) LPELR – 451 (SC), Olabode v. The State (2009) LPELR-2542 (SC), Amako v. The State (1995) LPELR-451 (SC); Josiah v. The State (1985) 1 SC 400, 416, Eyorokoromo v. The State (1979)8-9 SC 3; Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30, 61-62; Edibo v. The State (2007) LPELR -1012(SC); Adeniji v. The State (2001) LPELR-126 (SC); Madu v. The State (2012) LPELR-7867 (SC); Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548, 555; Rufai v. The State (2001) LPELR-2963 (SC); Effiom v. The State (1995) 1 NWLR (Pt. 373) 507; Adeniji v. The State (2001) FWLR (Pt. 57) 809; Omokuwajo v. FRN (2013) LPELR-20184 (SC); Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548, 567.

See also  Salawu Oke & Ors. V. Musilim Lamidi Aiyedun (1986) LLJR-SC

I have deliberately, set out only a handful of these decisions (there are, indeed, many more of such decisions) to expose the futility of canvassing an issue, such as the appellant’s issue [ ], which this Court, as shown above, has dealt with on numerous occasions. I refuse to entertain the misgiving that the inclusion of this hackneyed question, as an issue in this appeal, was a deliberate attempt to put the consistency of this Court’s reasoning to test.

​My Lords, as I indicated at the outset of this judgment, this is one of those appeals, disingenuously, agitated by counsel with full knowledge of its futility. With respect, the submission of the learned appellant’s counsel that the trial Court did not follow the correct procedure in arraigning the appellant is a submission which, embarrassingly, betrays his misconception of the attitude of this Court to this question of arraignment. As this Court pointed out in Okoro v. The State (1998) 14 NWLR (Pt. 584) 181:

The provision of the law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused(person) to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused (person) if he is not satisfied that the charge was read and explained to the accused (person) to his satisfaction. (Italics supplied for emphasis)

I, therefore, with humility implore all counsel who have the advantage of practising at this rare altitude of the Court’s hierarchy to, carefully, read these cases before irritating this Court their appeals that are dead on arrival. These case are: Ebem v. State(1990) 7 NWLR (Pt. 160) 113; Idemudia v. State (1999) 5 SCNJ 47,(1997) 7 NWLR (Pt. 610) 202; Onuoha Kalu v. The State (1998) 13 NWLR (Pt. 583) 531, Erekanure v. The State (1993) 5 NWLR (Pt.294) 385; Omokuwajo v. FRN (2013) LPELR -20184 (SC), (2013)9 NWLR (Pt. 1359) 300; Sharfal v. The State (1992) LPELR -3038(SC) 11; (1992) 7 NWLR (Pt. 255) 510.Others include: Ogunye v. The State (1999) 5 NWLR (Pt.604) 548, 567; Ewe v. The State (1992) LPELR-1179 (SC); (1992)6 NWLR (Pt. 246) 147; Dibie v. The State (2007) 9 NWLR (Pt.1038) 30; Lufadeju and Anor. v. Johnson (2007) LPELR -1795(SC); (2007) 8 NWLR (Pt. 1037) 535; Olabode v. The State (2009)LPELR-2542 (SC); (2009) 11 NWLR (Pt. 1152) 254; Amako v.The State (1995) LPELR – 451 (SC); (1995) 6 NWLR (Pt. 399) 11;Olabode v. The State (2009) LPELR-2542 (SC); (2009) 11 NWLR(Pt. 1152) 254; Amako v. The State (1995) LPELR – 451 (SC);(1995) 6 NWLR (Pt. 399) 11; Josiah v. The State (1985) 1 SC 400,416; (1985) 1 NWLR (Pt. 1) 125; Eyorokoromo v. The State (1979)8-9 SC 3; Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30, 61-62;Edibo v. The State (2007) LPELR-1012 (SC); (2007) 13 NWLR (Pt.1051) 306; Adeniji v. The State (2001) LPELR-126 (SC); (2001)13 NWLR (Pt. 730) 375; Madu v. The State (2012) LPELR -7867(SC); (2012) 15 NWLR (Pt. 1324) 405; Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548, 555; Rufai v. The State (2001) LPELR-2963(SC); (2001) 13 NWLR (Pt. 731) 718; Effiom v. The State (1995) 1 NWLR (Pt. 373) 507; Adeniji v. The State (2001) FWLR (Pt. 57)809; (2001) 13 NWLR (Pt. 730) 375; Omokuwajo v. FRN (2013)LPELR – 20184 (SC); (2013) 9 NWLR (Pt.1359) 300; Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548, 567.

I find no merit in this appeal. Accordingly, I hereby enter an order dismissing it. Appeal dismissed.


SC.776/2017

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