Jeremiah Joseph V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DALHATU ADAMU, J.C.A. CFR (Delivering the Leading Judgment)

This is an appeal against the judgment of High Court of Kaduna State per Hon. Justice G.I. Kurada delivered on 28/7/2010. The appellant was charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision)Act (Chapter R.11) Laws of the Federation of Nigeria 2004. He was alleged to have conspired with 3 other accomplices to rob PW1 and PW2. After the presentation of the case, the accused/appellant entered a no-case submission which was overruled by the trial court.

He was therefore called upon to enter his defence wherein he contended that there was insufficient evidence linking him to the offence. At the end of the trial the learned trial judge delivered judgment and convicted the appellant. He was subsequently sentenced to death by hanging or by firing squad until he is dead as the Governor of Kaduna state may direct. Aggrieved by the judgment, the appellant filed a notice of appeal against it. The notice of appeal is at page 57 of the record of proceedings. The appellant filed a brief of argument on 30/4/2012 and is deemed filed on 13/11/2012.

From his 2 (two) grounds of appeal in his notice of appeal (at page 57) the appellant formulated 2 (two) issues for determination of this appeal as follows: –

“Whether the trial of the accused is not a nullity by reason of the failure of the trial court to comply with the provisions of Section 187(1) of the Criminal Procedure Code (Ground 1).

Whether the trial court was right in overruling the no-case submission of the accused, thereby occasioning a miscarriage of justice (Ground 2).”

Although in the appellants brief the two issues were not numbered, they follow the sequence of the grounds of appeal and are hereby numbered as such.

On issue No.1, the provision of section 187(1) is reproduced as follows:-

“When the High Court is ready to commence trial, the accused shall appear or brought before it and the charges 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 charged or offences charged.”

It is submitted that this is the requirement of fair hearing which must be complied with in a criminal proceeding as failure to comply with the provision will render any form of criminal proceeding as a nullity. The above quoted provision is a mandatory requirement and must be complied with in a criminal proceeding. A failure to comply with it will render the proceedings a nullity – See Kajubo vs. The State (1988) 1 NWLR (Pt.73) P.721. It is further submitted that in order to determine whether an accused person was given a fair trial within a reasonable time, time only begins to run when he makes his plea.

Section 36(6)(a) of the 1999 Constitution requires that every person who is charged with a criminal offence shall be informed promptly in the language he understands in detail of the nature of the offence. It is submitted that the failure to carry out a proper arraignment of the appellant as well as the failure of the trial court to take the plea of the accused in line the strict provisions of Section 187 and Section 36(6)(a) of the Constitution will have the effect of rendering the conviction of the accused/appellant null and void ab initio.

In the instant appeal it is argued that the record of appeal shows without any doubt that the mandatory provisions of Section 187 of the Criminal Procedure Code and Section 36(6)(a) of the 1999 Constitution were not complied with at the trial of the appellant in the lower court. Indeed the record shows at p.31 thereof of what transpired on the first day the appellant was brought to court. It is submitted that what transpired in the court on that date and day cannot by any stretch of imagination be said to amount to compliance with the provisions of Section 187 of the Criminal Procedure Code and Section 36(6)(a) of the Constitution.

In the case of Kajubo vs. State (1988) 1 NWLR (Pt.73) at 721, the Supreme Court held that a proper arraignment consists of the following steps – that is the accused person shall be placed before the court unfettered, the charge shall be read over and explained 0to the accused person to his understanding and to the satisfaction of the court, the charge is to be read to the accused by an officer of the court and the accused shall be called upon to plead instantly to the charges read over to him. It is submitted in the appellants brief that failure to follow these steps would automatically amount to a violation of the accused persons constitutionally guaranteed fundamental right to a fair hearing under the 1999 Constitution – See Erehanure vs. State (1993) 5 NWLR (Pt.294) 392.

It is submitted that fair hearing means giving equal opportunity to the parties to be heard in the case and conducting a trial according to all legal rules to ensure that justice is done to the parties – See Ntukidem vs. Oko (1986) 5 NWLR (Pt.45) 909; UBN Ltd. vs. Nwokolo (1995) 6 NWLR (Pt.400) 127; Epeto vs. Wanogho (2004) 18 NWLR (Pt.905) 394; Briefina Ltd. vs. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt.814) 540. The denial of party’s right to fair hearing means that the proceedings conducted in breach thereof amount to a nullity – See Adigun vs. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) where the Supreme Court held that.