Monday Irek Okimba V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A (delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State, Obubra Division delivered on 29th June, 2009. The appellant and one Sunday Ewoh Nnachi were the accused persons in charge No. HB/1C/2007 wherein they were alleged to have committed the offence of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 in that they robbed one Benedict Igwe Ali of goods valued at N137,800.00 (One Hundred and Thirty, Seven Thousand, Eight Hundred Naira) on 19th August, 2006 at Apiapum, Obubra while armed with guns.

The prosecution called one Sergeant Omori Ibang attached to the Anti. Robbery Squad, State C.I.D. Calabar as the only witness. He was the Police Officer that investigated the case after it was transferred from Obubra Division to the State C.I.D. The accused persons made no case submission through their counsel after the evidence of the prosecution, and the learned trial judge thereafter adjourned for judgment whereupon the accused persons were found guilty of armed robbery, convicted and sentenced to death.

The appellant was dissatisfied with the judgment and upon the motion filed on 18th February, 2012 this court, by the order of 23rd March, 2011 enlarged the period within which to appeal, and on the same date, the appellant filed Notice And Grounds of Appeal with 7 grounds. The Appellant’s Brief of Argument settled by Innocent C. Ovat Esq. of counsel was filed on 8th June, 2011 with the following issues distilled for determination:

1. Whether the accused persons plea as recorded by the learned trial judge was validly, properly and regularly taken as required by Section 209 of the Criminal Procedure Law Cap. C 17 Vol. 3, Laws of Cross River State, 2004.
2. Whether the entire proceedings in HB/1C/2007 ought not to be quashed for failure of the prosecution to seek and obtain leave of the judge before filing the information.
3. Whether the judgment of the lower court is not nullity for violation of the appellant’s right to fair hearing.
4. Whether the trial court in the absence of any legally admissible corroborative evidence was right to have placed reliance on a retracted extra-judicial statement.

The Respondent’s Brief of Argument settled by Eneji Amajama SSC II in the Ministry of Justice, Calabar was filed on 10th October, 2011 but deemed on 23rd February, 2012. The issues formulated for determination therein are the following:

1. Whether the totality of the arraignment of the appellant (on the 9/5/2007) was in substantial compliance with the provision of Section 209 of the Criminal Procedure l-aw Cap. CL7, Vol. 3 Laws of Cross River State, 2004.
2. Whether the failure to obtain consent of the judge to prefer this information con be raised for the first time in this court regard being had to the provision of Section 309 (3) (b) of the Criminal Procedure Low Cap. C17 Vol. 3 Laws of Cross River State, 2004.
3. Whether the learned trial judge was right when he proceeded to convict the appellant after overruling the no-case submission made and relied upon by the appellant.
4. Whether the trial judge was correct in his judgment when he placed reliance on the retracted confessional statement of the appellant (exhibit 3) in the circumstance of this case.

At the hearing of the appeal, the parties were represented by their respective learned counsel who adopted their briefs and urged court to accept the position as canvassed therein.

It is pertinent to state that Mr. Okah of counsel moved the motion filed on 4th October, 2011 for leave to allow the appellant raise and argue fresh issue concerning the prosecutor’s non-compliance with conditions precedent to filing the information in change No. HB/1C/2007. Amajama Esq. learned counsel for the respondent did not oppose, and the application was granted thereby removing the potency of issue number 2 in the respondent’s brief.

The arraignment proceedings and the plea of the appellant is the first issue raised by the appellant’s counsel and it is also the 1st issue formulated by the respondent.

It had been contended by appellant’s counsel that the learned trial judge failed to comply with the mandatory procedure for arraignment as provided by Section 209 of Criminal Procedure Law Cap. C17 Vol. 3 Laws of Cross River State, 2004 in that the plea of the two accused persons as replicated on the record is ambiguous, improper invalid and not in compliance with the requirements for a valid arraignment and plea. The cases of Akpiri Ewe vs. State (1992) 7 SCNJ (Pt. 7) 15; Alake vs. State (2001) FWLR (Pt. 65) 435 and Ibrahim vs. State (2011) FWLR (Pt. 1227) 1 were cited in support of the argument that the requirements for a valid arraignment are inextricably tied to the Constitutional right to fair hearing and that once the plea of the accused person is not properly taken and properly recorded, the trial will be a nullity.

It was also submitted that where two or more accused persons are jointly arraigned, it is mandatory that the plea of each of them must be separately taken and separately record, citing R. V. Zeniulla & Ors. (1945) 12 WACA 68; Sam vs. State (1991) 2 NWLR (Pt. 176) 699. It was further submitted that the consequence of the group plea as taken by the learned trial judge is that the whole trial and the judgment thereupon is null and void, citing Yahaya vs. State (2002) 3 NWLR (pt.754) 289; Alintah vs. FRN (2010) 6 NWLR (pt. 1191) 508.

The respondent conceded the requirements for a valid arraignment as stated by the appellant, but contended that the learned trial judge substantially complied with those requirements and the arraignment was therefore valid. It was also contended that the irregularity in failing to record separate plea for the appellant and his co-accused will not lead to quashing the verdict of the trial court because no miscarriage of justice has been occasioned thereby, citing Solola vs. State (2005) 22 NSCQR (pt.1) 254.

Arraignment is the commencement of trial in a criminal case, and it consists of the production of the accused person in court, the reading over of the charge and explanation of same to the accused, and the taking and recording of his plea.

Section 209 of Criminal Procedure Law Cap. C. 17 Laws of Cross Rive State, 2004 (CPL) provides for arraignment procedure as follows:

“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 to 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 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.”