Federal Republic Of Nigeria V. Mohammed Abubakar (2019)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
On the 6th day of May 2008, the Federal High Court sitting at lbadan, hereinafter referred to as the trial Court, convicted the respondent and one Uchenna Iwuafor under Section 11 (d) of the NDLEA Act Cap 130 Laws of the Federation 2004. The two were sentenced to fifteen years imprisonment each.
On finding respondent’s appeal against the trial Court’s judgment meritorious, the lbadan Division of the Court of Appeal, the lower Court, allowed same and set aside his conviction and sentence.
Dissatisfied with the lower Court’s decision delivered on the 5th of May 2015, the respondent thereat has appealed to this Court on a notice filed on 15th May 2015 containing three grounds.
In the appellant’s amended brief of argument settled by Segun Ololade Esq deemed filed on November 2018, adopted and relied upon at the hearing of the appeal, two issues have been distilled as basis for the determination of the appeal thus:
“(I) Whether the learned Justices of the Court of Appeal erred in law when they held that the arraignment of the Respondent fell far below the position of the law.
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(II) Whether in view of the plea of guilty by the Respondent, the learned Justices of the Court of Appeal were right in holding that the proof of a crime in a trial is beyond reasonable doubt.” (Underlining supplied for emphasis).
Abioye A. Oloyode-Asanike Esq settled the respondent’s brief wherein two issues for the determination of the appeal have been distilled, as follows: –
“(I) Whether the learned trial judge fulfilled the condition precedent to plea taking.
(II) Whether in view of the plea of guilty by the Respondent the learned trial judge was right in convicting and sentencing the respondent to fifteen years imprisonment with hard labour.”
A very feeble objection appears to have been raised at pages 3 – 4 of the respondent’s brief on the competence of the issues distilled by the appellant and by extension the entire appeal. It is argued that the issues being at variance with the grounds of appeal, the appellant is deemed to have abandoned its appeal. Relying on the decisions inUnity Bank Plc v. Edward Bouari (2008) 33 NSCQRO 296 at 325 – 325, Fasoro Anor v. Beyioku & Ors (1988) 2 NWLR
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(Pt 76) 263 at 270 – 271, learned respondents counsel urges that the incompetent appeal be struck out. As feeble and unorthodox as the objection is, being a challenge to the competence of the appeal, it has to be determined first.
This Court can only proceed with the appeal on the basis of competent issues presented by the appellant for the determination of the appeal. It is necessary that a decision is made in that regard to save everyone’s precious time. To proceed on incompetent issues, without the necessary jurisdiction on the part of the Court. is not worth the while. The exercise will come to naught. The principle is that where a Court lacks jurisdiction, it is bereft of any power to determine the merit of the issue it purports to try. See Bronik Motors Ltd v. Wema Bank Ltd (1983) 1 SCNLR 296 and Madukolu V. Nkemdilim (1962) NSCC 374.
A perusal of the notice and grounds of the appeal which span pages 94 – 97 of the record of appeal belies learned respondent’s counsel’s contention. Appellant’s 1st ground of appeal dwells on the lower Court’s findings that the trial Court did not comply with the mandatory provision of Section 215 of the Criminal Procedure Act on proper arraignment.
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Appellant’s 1st issue, at least, relates to his 1st ground of appeal and the grudges it encapsulates. Such an issue cannot lawfully be said to be at large and for that matter incompetent. The appeal is capable of surviving on this lone competent issue. I so hold in discountenancing respondent’s misconceived objection.
On its 1st issue, learned appellant’s counsel submits that the trial Court has complied with Section 215 of the Criminal Procedure Act as well as Section 36 (6)(a) of the 1999 Constitution on arraignment and that the lower Court is wrong to have decided otherwise. Respondent’s clear and unequivocal plea, it is argued, strengthens the trial Court’s satisfaction that the plea is further to respondent’s understanding of the charge that was read to him. Absence of any objection from the respondent, learned appellants counsel submits, entitled the trial Court to presume that his plea is proper and valid. Nothing appears from the trial Court’s record to show that from the language in which the charge was read or the proceedings was interpreted to the respondent, he did not understand the charge.
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On the face of the record, it is contended, Section 168 (1) of the Evidence Act 2011 operates against any argument that the respondent neither understood the charge nor followed the proceedings at the trial Court.
Relying on Afolalu v. State (2009) 3 NWLR (Pt 1127) 160, Ogbeneoru v. FRN (2013) ALL FWLR (Pt 667) 704 and Okewa v. FRN (2012) 9 NWLR (Pt 1305) 327, learned counsel submits that the arraignment of the respondent done in substantial compliance with the clear provisions of Section 215 of the Criminal Procedure Act and Section 36 (6)(a) of the Constitution be upheld and his conviction restored.
Learned counsel to the respondent contends otherwise. The record of the trial Court’s proceedings on the arraignment and conviction of the respondent, learned counsel submits, contains nothing to warrant the presumption the appellant ascribes to Section 168 (1) of the Evidence Act 2011 in relation to the Court’s compliance with Section 215 of the Criminal Procedure Act and Section 36(6)(a) of the 1999 Constitution as amended on proper arraignment. The Sections of the two legislations, it is submitted, require substantial compliance and
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breach of either or both renders the entire proceedings of the trial Court a nullity. The lower Court is right, learned respondent’s counsel further argues, to have held that it is impossible to infer from the trial Court’s proceedings that the charge for which the respondent was arraigned was explained to him and that he understood the content of the charge and the implication of his plea thereto. The respondent, who was not represented by counsel, it is further contended, cannot in the absence of clear explanation as to the meaning of the technical term “cannabis sativa” be said to have properly pleaded to the charge. In that wise, he concludes, the lower Court is right to have held that respondent was improperly arraigned. Relying onCHIEF AGBAREH & 1 0R VS DR. ANTHONY MIMRA & 2 ORS (2008) 33 NSCQR 970 @ 1021, THE ATTORNEY GENERAL OF ANAMBRA STATE VS THE ATTORNEY GENERAL OF THE FEDERATION & 26 ORS (2005) 22 NSCQR PAGE 575 @ 595, UNITY BANK PLC & OR VS EDWARD BOUARI (2.008) 311 NSCQRO 296 @ 325-326 and FASORO & ANOR VS BEYIOKU ORS (1988) 2 NWLR (PT 76) 263 @ 270 271, learned counsel urges that the issue be resolved against the appellant and the unmeritorious appeal be dismissed.
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Now who, between the appellant and the respondent, in their respective complaint and defence of the lower Court’s judgment, is on the correct side of the law Both are one and rightly so that Sections 215 of the Criminal Procedure Act and 36 of the 1999 Constitution as amended applicable to proceedings at the trial Court provide for arraignment thereat. They only differ as to the effect of non-compliance with the two provisions. The issue the appeal raises, therefore, is whether the lower Court is right as to what constitutes improper arraignment and the effect same has to the trial Court’s proceedings founded on same.
An arraignment is about taking the plea of an accused person. The procedure provides the accused the opportunity of giving his formal response of guilty, not guilty or, still, no contest to the charge. Arraignment is one of the fundamental requirements of a valid trial. Because of its fundamental nature, objection to the plea of an accused for being in contravention of the constitutional and procedural requirements on arraignment though more appropriately
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taken before trial, same may be raised, as in the instant case, even on appeal. Whenever raised and sustained, justice will be done by the intervention of the Court. See Egbedi V. State (1981) 11-12 SC 98, Kajubo V. State(1988) 1 NWLR (Pt 73) 721 and Eyorokoromo V State (1979) 6-9 SC 3.
Section 215 of the Criminal Procedure Act and Section 36 (6)(a) of the 1999 Constitution in contention in this appeal are hereinunder reproduced for ease of reference:
“Section 215: The person to be tried upon a 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 the 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.”
“Section 36(6)(a)
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.” (Underlining supplied for emphasis)
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The brief proceedings at the trial Court that brought about the instant appeal is hereinunder reproduced from pages 2 3 of the record of appeal for ease of reference:-
“IN THE FEDERAL HIGH COURT OF NIGERIA
IN IBADAN JUDICIAL DIVISION
HOLDEN IN IBADAN ON
TUESDAY, THE 6TH DAY OF MAY, 2008
BEFORE HIS LORDSHIP,
THE HONOURABLE JUSTICE R.N. OFILI-AJUMOGOBIA,
JUDGE
CHARGE NO: FHC/IB/CR/9/2008
BETWEEN
FEDERAL REPUBLIC OF NIGERIA
AND
(1) UCHENNA IWUAFOR (M)
(2) MOHAMMED ABUBAKAR (M)
Case called
Accused person in Court
P.E. Udomiaye appears for the prosecution
UDOMIAYE: I apply the charge be read to accused person in order to take plea.
Charge read to both accused persons
Both accused pleaded guilty
UDOMIAYE: We urge Court to convict accused person based on their plea.
COURT: 1st accused can you tell me anything about your circumstance to influence the sentence I am about to hand to you.
1st ACCUSED PERSON: My mother is dead. Have mercy on me.
2nd ACCUSED PERSON: I have nobody.
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For past 4 years I have not visited Adamawa State my home state.
COURT: In view of their plea of guilt for the offence of possessing 92 kilogrammes of cannabis sativa contrary to Section 11 (d) of the NDLEA Act CAP N30 LFN 2004 I hereby sentence the 1st Accused and 2nd Accused persons each to 15 years imprisonment with hard labour.
Signed
Hon. Justice R.N. OFILI-AJUMOGOBIA
JUDGE
6TH MAY 2008.”
In applying the extant procedural and constitutional provisions to the foregoing proceedings of the trial Court, the lower Court opined, see page 85 of the record, firstly thus:-
“In the proceeding of the that Court herein before reproduced, there is nothing on record to show in which language the charges were read and explained to the appellant nor is it indicated the language the appellant speaks and or understands. In a situation such as the one at hand in a criminal trial, it is my humble view that it would add credence to the trial if at the commencement of the trial and after the accused is put in the duck (sic) for the Court a request from the accused which language he intends to speak. Doing this would guide the Court as to
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whether or not an interpreter would be required or whether or not the accused understands the language of the Court. It is better to err on the part of caution.”
And proceeded at page 87-88 of the record as follows: –
“The appellant was charged for being in possession of 92 kilogrammes of cannabis sativa otherwise known as Indian hemp, a narcotic drug similar to cocaine, heroin and LSD. These are special type of offences created by the law under which the appellant was arraigned and sentenced. The pertinent question here is whether or not the appellant could summarily be pronounced guilty and sentenced as in the instant case without any expert opinion evidence (forensic laboratory report) confirming that what the appellant had in his possession as of then, weeds suspected to be Indian hemp (Cannabis Sativa) are truly Indian hemp otherwise known as cannabis sativa…
Since the Court cannot say conclusively that what the appellant had in his possession is Indian Hemp, it creates a cloudy atmosphere of uncertainty as to whether or not the substance is truly Indian hemp (Cannabis Sativa). What the Court ought to do in that circumstance was to enter a
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plea of not guilty for the appellant. But where the prosecution was able to tender the expert opinion evidence on the substance allegedly found in possession of the appellant at the time of pleading guilty, this finding would be otherwise. Absence of that material evidence confirming that the substance is cannabis sativa (Indian hemp) again renders the pronouncement of the appellant guilty void.”
The effect of the foregoing lapses on the trial Court’s decision was better stated by Nonyerem Okoronkwo JCA in his concurring contribution at page 93 of the record thus:
“In this case, the trial judge, from her record; thinks that summary trial means that she could deal with the accused person who supposedly pleaded guilty in a brief manner -brevi manu and not consider procedural safeguards included in Procedural Laws like the Criminal Procedure Act. If the trial Court had considered the Provisions of Section 248 of the Criminal Procedure Act, she would have probably noticed the safeguards in dealing with a plea of guilty, part of which is that the Court must be satisfied that the accused intended to admit the truth of all the essentials of the
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offence of which the accused has pleaded guilty. This means that all the essentials of the offence must be understood, given in fact and matched against the plea given. It does not mean as it were ‘call the case, let me quickly and briefly deal with it and be on my way.’
In this case, the subject of this appeal, all the procedural safeguards were apparently neglected in a bid to do ‘Summary Justice.” This is not the purpose of summary trial. Summary trial implies a duty to smoothen the rough edges of a case, it means due filtration not hurry, hurry work
Obietonbara Daniel-Kalio, JCA was equally forth-coming thus:-
“Going “through the judgment of the lower Court, one goes away with a feeling that perhaps in the name of summary trial, the learned trial judge treated vital issues with a great degree of rush thereby compromising the integrity of the judgment handed down.
One cannot agree more with the learned respondents counsel that the lower Courts foregoing structures on the decision of the trial Court is beyond reproach.
In Idemudia V. State (1999) 7 NWLR (Pt 610) 202 at page 222 of the report, Karibi-Whyte JSC while concurring, states inter-alia thus: –
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“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 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 et solemniter esse ecta. Accordingly in the absence of proof to the contrary the presumption prevails. See also Section 150(1) Evidence Act. (Underlining supplied for emphasis).
In the case at hand the appellant was not represented by counsel at the trial Court. The record of proceedings at the trial Court does not ex facie show in
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what language the charge was read to the appellant and whether indeed the appellant had understood the charge and the implication of his plea to same. In the face of these facts, learned respondent’s counsel is right in insisting that the law does not allow the survival of the trial Court’s proceedings on the basis of the presumption of its regularity under Section 168 of the Evidence Act.
From the extant provisions, the requirements on arraignment, whether. in a summary or a full-blown trial, the mandatory and the Courts are under duty to observe the prescribed requirements. A valid arraignment, therefore, enures when the Court ensures that: –
(a) The accused is brought before it unfettered, unless it sees to order otherwise
(b) To read and explain to the accused arraigned the charge against him in the language he understood
(c) Satisfy itself that the charge had been read and explained to the accused in the language he understands.
This Court has persistently held that the three foregoing requirements must co-exist and failure to comply with any one of them renders the whole trial a nulity. See Idemudia v. State (supra), Eyorokoromo v. State (supra), Okoro v. State (1998) 14 NWLR (pt 584) 181, Kajubo v. State (supra) and Kalu v. State (1998) 13 NWLR (Pt 583) 531.
In the case at hand where the trial court’s proceedings fall in
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clear breach of virtually all the requirements of a valid arraignment, the lower Court’s judgment stating so and nullifying the former’s invalid proceedings must endure.
It is for the foregoing that I find no merit in this appeal and dismiss same. The lower Court’s decision is hereby resultantly affirmed.
SC.393/2016