Akpiri Ewe V. State (1992)

LawGlobal-Hub Lead Judgment Report

L. KUTIGI, J.S.C.

The appellant was at the Abakaliki High Court charged with the offence of murder contrary to Section 319 of the Criminal Code. Cap. 30 Laws of Eastern Nigerian 1963. He was found guilty and sentenced to death. His appeal against sentence and conviction to the Court of Appeal, Enugu Division was dismissed. He has now further appealed to this Court.

Briefs of argument were filed and exchanged by the parties.These were adopted at the hearing. Oral submissions were also made in addition thereof.

At the hearing, which was on 28th day of May, 1992, the Court suo motu drew attention of counsel to page 3 lines 25-30 of the record where the plea or the appellant was recorded and then asked to be addressed on whether or not the appellant was properly arraigned as provided for by Section 215 of the Criminal Procedure Act.

Mr. C. C. Eneh learned assistant Chief Legal Officer for the respondent conceded that section 215 of the Criminal Procedure Act was not sufficiently complied with. He said although the appellant pleaded not guilty, there was nothing on the primed record to show that the charge was read and explained to the appellant as required by section 215 of the Criminal procedure Act. It was then submitted that the omission did not vitiate the trial since the appellant was represented by counsel throughout the trial and no objection was raised on the point by his counsel.

Chief Akinyosoye learned counsel for the appellant on the other hand said failure to read and explain the charge to the appellant showed that the appellant did not know the charge he was facing. The law had not been complied with. There was therefore no valid and proper arraignment of the appellant. The trial was equally not valid. He said the appeal should he allowed.

In view of the importance and mandatory nature of the provisions of section 215 of the Criminal Procedure Act and the order I intend to make in the end. I do not wish to go over the facts of the case and the arguments in the briefs of counsel based on the grounds of appeal filed before this Court. I will confine myself to the procedure as laid down in section 215 of the Criminal procedure Act only.

Now section 215 of the Criminal Procedure Act, Cap, 80, Laws of the Federation of Nigeira, 1990 reads as follows:

“215. 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 services 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 therein.”

(Italics is mine for emphasis only).

It is clear from Section 215 above that for a proper and valid arraignment of an accused person. the following pre-requisites must be established to exist-

1. The person to be tried shall be placed before the court unfettered:
2. The charge or information shall be read and explained to him to the satisfaction of the court by the registrar or other officer of the court:
3. Such person shall be called upon to plead instantly thereto.

Failure to comply with any of the above conditions will of necessity render the whole trial a nullity (See Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Eyorokoromo v. The State (1979) 6-9 S.C. 3. And as was the rightly pointed out by this Court in Kajubo v. The State (supra) the mandatory nature of section 215 of the Criminal Procedure Act is further reinforced and confirmed by section 33(6)(a) of the 1979 Constitution wherein it is provided that –

“33. (6) Every person who is charged with a criminal offence shall be entitled-

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