Friday Agagaraga V. The Federal Republic of Nigeria (2006)

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DONGBAN-MENSEM, J.C.A.

On the 11th day of July 2001, the Hon. Justice A.M. Liman of the Federal High Court Holden at Umuahia, Abia State of Nigeria, convicted the appellant and sentenced him to a term of ten years imprisonment without an option of fine. The offence as stated in the charge sheet was “…dealing in 34.0 kilograrns of Indian Hemp… known as Cannabis Sativa, without lawful authority contrary to and punishable under section 10 (c) of the NDLEA Act Cap 253 of the LFN 1990” It was a short summary trial, the appellant having pleaded guilty to the offence.

The appellant has now come to this court upon three grounds of appeal challenging his conviction and sentence.

Two issues were formulated for the appellant for determination. The respondent however merged the issues of the appellant into one. I agree with the learned counsel for the respondent that the appeal can be resolved upon the issue for formulated for the respondent.

This appeal shall be determined on the said issue, which fully incorporates the three grounds of appeal filed by the appellant.

The Issue:

“Whether there was a proper arraignment and conviction of the appellant having regard to:

(a)Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federal Republic of Nigeria, 1990;

(b) Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999.”

It needs to be stated that section 215 of the Criminal Procedure Law, Cap 31 Laws of Eastern Nigeria 1963 (applicable to Abia State) cited by the learned counsel to the appellant and section 215 of the Criminal Procedure Act Cap. 80 Laws of the Federation, 1990 are one and the same law. Same with section 218 as variously cited by the said learned counsel.

Citing sections 215 & 36 (6) respectively of the CPL cap 80 LFN 1990, vol. V and the Constitution of the Federal Republic of Nigeria 1999, the learned counsel to the appellant contends that the appellant was not properly arraigned before the trial court. The learned counsel submits that merely reading the charge to the appellant (as accused) without explaining same utterly violated the provisions of section 215 of the CPL & 36(6) of the 1999 Constitution. (supra). The situation, maintains counsel, was further compounded by the fact that the appellant, by the records of the court, is not literate in English language, which is the language of the court. Accused was recorded as speaking Igbo.

The learned counsel posits that by these facts alone, the entire proceedings conducted by the trial court was a nullity. Counsel cited the following cases to buttress his argument:

1. Paulinus Tobby (Alias Udo Eddy) v. The State (2001) 10 NWLR (Pt.720) 23, (2001) 30 WRN,
2. Kalu v. The State (1998) 13 NWLR (Pt. 583) P 531.
3. Durwode v. The State (2000) 15 NWLR (Pt.691) 467, (2001) 7 WRN p.50 at 61.
4. Adeniji v. The State (2001) 25 WRN, p. 117 at 126, lines 10-20.

The learned counsel to the respondent contends the contrary. Counsel submits that the records of the trial court as shown on page 2 lines 1-4 and 5 indicate that the trial court complied with the provisions of section 215 and 218 of the CPA. It is further the contention of the counsel that the charge was interpreted to the appellant, he understood and pleaded guilty thereto. The court was satisfied that the appellant understood the charge against him and intended to plead guilty to it. The court convicted and sentenced him accordingly.

I must say straight away that the records of this appeal do not support this submission of the learned counsel. Section 132 of the Evidence Act, Cap 112 LFN 1990 provides for the bindingness of the records of proceedings. In the case of Mohammed Bello & 7 Ors. v. The State (1994) 5 NWLR (Pt. 343) p. 177 at 186, the Jos Division of this court held that the records of the lower court bind this court. It cannot therefore add to nor subtract from the records before it or guess or conjecture at the contents of the record of proceedings. The written brief of the learned counsel cannot supplement the records of the lower court.