Alhaji Murtala Shariff V. Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
This is an appeal against the summary conviction and sentence of the Appellant by the Kaduna State High Court in a judgment delivered on 23/7/15 by M.T.M. Aliyu J, on account of his plea admitting the offences against him, brought by the Economic and Financial Crimes Commission (EFCC) on behalf of the Respondent.
The Appellant was arraigned on a two count charge of forgery and using as genuine a forged document, punishable under Section 364 of the Penal Code, Laws of Kaduna State 1991. Based on his plea of guilt, he was convicted and sentenced to various terms of imprisonment. It is against this conviction and sentence that he has filed, on 18/8/15, a Notice of Appeal to this Court.
Briefs of argument were filed by both parties. In the Appellant’s Brief, settled by Shittu M. Inuwa Esq. dated 20th November 2015 and filed on 27th November 2015, two issues for determination were formulated, namely:
1. Whether the trial, summary conviction and sentence passed on the Appellant by the trial judge is not a nullity by reason of the apparent trial Court
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judge’s failure to strictly comply with mandatory provisions of Section 187(1) of the Criminal Procedure Code, Laws of Kaduna State 1991 and Section 36(6a) of the 1999 Constitution of Nigeria as amended.
2. Whether it was right for the trial Court judge to have summarily convicted and sentenced the Appellant for the offences charged on account of this plea without specifying in his judgment the relevant law under which the trial Court judge so convicted and sentenced the Appellant.
In the Respondent’s Brief, settled by Nasiru Salele Esq. dated 11th Feb 2016 and filed on 15th Feb 2016, a lone issue was formulated, to wit:
Whether the arraignment upon which the conviction and sentence imposed on the Appellant was valid in law.
Learned Counsel to the Appellant further filed, on 1/3/16, a Reply Brief dated 29/02/2016.
The learned counsel to the Appellant, arguing his first issue for determination, has submitted that the Appellant’s trial, conviction and sentence by the trial Court, even though the Appellant admitted the allegations against him, should not be allowed to stand, in view of the obvious defect in his arraignment by the trial
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Court. Citing the case of Edet V State (2009) All FWLR Part 463 Page 1430 @ 1441 Paras E-H learned Counsel submitted that where there is a defect in the procedural requirements or where there is an invalid or improper arraignment of an accused person at the trial Court, as in the instant case, the proceedings, no matter how well conducted, are rendered null and void. The proceedings, he said, fell short of the requirements of the law relating to proper arraignment of the Appellant, as provided under Sections 187 (1) of the Criminal Procedure Code, Laws of Kaduna State 1991.
Conceding that the 1st and 2nd procedural requirements given in the case of Rufai V State (2001) FWLR Part 65 Page 435 @ 447 Paras A-C were complied with, he submitted that the trial Judge failed to comply with the 3rd requirement. Failure by the trial Court to ask the Appellant to plead to the charges brought against him and inform him of his right to either plead “guilty” or “not guilty” to the charges, denied him the opportunity of knowledge and right in his defence, as prescribed under Section 187 (1) of the CPC. This denial rendered the Appellant’s trial perverse and occasioned a
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substantial miscarriage of justice.
He added that the Appellant being an illiterate in the use of English language did not know and cannot be presumed to have known that the prosecution always has the burden of proof in prosecuting the Appellant at the trial Court. He cited Section 135 (1) of the Evidence Act 2011. The Court should accordingly allow the appeal on the ground that the Appellant’s arraignment at the trial Court was incurably defective, rendering the whole trial, including the summary conviction and sentence, null and void.
In his response, learned counsel to the Respondent cited Section 187(1) of the Criminal Procedure Code contending that the trial Court fully complied with the conditions for proper arraignment laid down in the above section. The record, he said, shows that the Appellant was brought before the trial Court and the charge read over and explained to him and thereafter the Appellant pleaded guilty and was sentenced, based on his plea. He referred this Court to Pages 143-145 of the Record. The accusation of the Appellant of failure of the trial Court to specifically record that the accused was asked whether he is guilty or
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not before taking his plea, cannot be sustained, he said, citing the case of Akpan v State (2002) 12 NWLR Part 780 Page 189 @ 202 Paras G-H.
The requirements of both Section 187(1) of the Criminal Procedure Code as well as Section 36 of the 1999 Constitution as amended were substantially complied with, he submitted. He cited in addition, the cases of Eyisi v State (2000) 15 NWLR Part 691 Page 555; Durowole v State (2000) 15 NWLR Part 691 Page 467.
He urged that the appeal be dismissed as unmeritorious, being based on mere technicalities, which no longer have place in our law, the aim of the law being to attain substantial justice. He further urged the Court to hold that the arraignment and sentence of the trial Court was proper, having substantially complied with all the relevant laws.
In his Reply Brief, Counsel to the Appellant contended that the Respondent’s Counsel misconstrued the provisions of Section 187 (1) of the Criminal Procedure Code vis-a-vis the proceedings of the Court, which stipulates three fundamental requirements which must exist on the face of the trial Court’s record otherwise the whole trial of the Appellant becomes
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incurably defective, null and void. Citing Rufai v State (supra) he submitted that the only exception to the mandatory procedural requirement that the 3 ingredients of Section 187(1) CPC must exist on the face of the trial Courts record is the phrase “where there exist any valid reason to do otherwise”. The Respondent did not show this Court the valid reason which existed and which necessitated the trial Court not calling upon the Appellant to plead to the charges made against him at the trial. Counsel thereafter repeated submissions made by him in the Appellant’s Brief.
I shall adopt, as the sole issue for determination, that raised by the Respondent, abbreviated for succinctness as follows:-
Whether the arraignment of the Appellant was valid in law.
It is not in doubt that strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a prerequisite of a valid trial, and where a trial judge proceeded to try the accused without strictly complying thereto, the trial will be rendered null and void. See Kujobo v State (1988) NWLR Part 73 Page 721 per Wali JSC.
In the case of Rufai v State (2001) 13 NWLR
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Part 731 Page 718, cited by the Appellant’s Counsel, the Supreme Court deliberated on Section 215 of the Criminal Procedure Law, which statute the Appellant’s Counsel submits is akin to Section 187 of the Criminal Procedure Code. The Court, per Wali JSC, reading the lead judgment, at Pages 727-728 Para G-E held thus:
“Section 215 of the Criminal Procedure Law Act provides 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 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.”
In Kajubo v The State (1988) 1 NWLR (Pt.73) 727, this Court provided the following guidelines on arraignment of an accused person and the taking of his plea:-
1. that the accused person to be tried shall be placed
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before the trial Court unfettered;
2. the charge shall be read and explained to him in the language he understands to the satisfaction of the trial Court, by the registrar of the Court or other officer of the Court, and
3. the accused person shall then be called upon to plead instantly to the charge, and
4. the plea of the accused shall also be instantly recorded.
The provision of Section 215 of Criminal Procedure Law (supra) has been further reinforced by Section 33(6)(a) of the 1979 Constitution in order to guarantee fair hearing and trial of the Accused.”
The same learned jurist in the case of Kajubo v State (1988) 1 NWLR Part 73 Page 721 at 732 Para A-F defined a valid arraignment thus:
“An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the Court, followed by taking his plea. See Oyediran v. The Republic (1967) N.M.L.R 122. As correctly stated by learned Counsel for the respondent in his brief and subject to the provision of Section 100 of Criminal Procedure Law, Section 215 of Criminal Procedure Law is mandatory and not directory. The mandatory
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nature of the section is further confirmed by Section 33(6)(a) of the 1979 Constitution which provides as follows:
“(6) Every person who is charged with a criminal offence shall be entitled
(a) to be informed promptly in the language he understands and the detail of the nature of the offence.”
The conditions laid in Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution, are not for formality sake but are specifically provided to guarantee the fair trial of an accused person. The trial judge has a bounden duty to secure the compliance with the provisions of both Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the Constitution by showing that in his record…… A strict compliance with a mandatory statutory requirement relating to the procedure in a criminal trial is a pre-requisite of a valid trial, and where a trial judge proceeded to try the accused without strictly complying with the provisions of Section 215 of the Criminal Procedure Law and Section 33(6)(a) of the 1979 Constitution, the trial would be declared a nullity by an appeal Court.
See also Edet v State (2009) All FWLR Part
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463 Page 1430 at 1441 Para D-G per Omokri JCA; Eyisi v State (2000) 15 NWLR Part 691 Page 555; Durowole v State (2000) 15 NWLR Part 691 Page 467;
Sections 187 of the Criminal Procedure Code Cap 43 Laws of Northern Nigeria 1991, applicable to this case, provides as follows:
Section 187 of the Criminal Procedure Code
S 187 (1)
(1) When the High Court is ready to commence the trial the accused shall appeal or be brought before it and the charge 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 or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.
While there are slight differences between Section 215 of the Criminal Procedure Law and Section 187(1) of the Criminal Procedure Code, the principles given in the cases above cited to be applied in the arraignment of an accused person, apply, I hold, to Section 187 of the Criminal Procedure Code, as follows:<br< p=””
</br<
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1. The charge shall be read and explained to the Accused in the language he understands, to the satisfaction of the trial Court, by the registrar of the Court or other officer of the Court, and
2. The accused person shall then be called upon to plead instantly to the charge, and
3. The plea of the accused shall also be instantly recorded.
Section 36 (6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
6 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;
Applying the laws and the authorities above to the instant case, the questions to be answered are:
1. Was the charge read and explained to the Appellant in the language he understands?
2. Was he called upon to plead to the charge?
3. Was his plea recorded?
The proceedings before the lower Court, at Pages 143-146 of the Record, are as follows:
?23-07-15
Accused in Court, speaks Hausa,
Nasiru Salele with him N.K. Ukoha, Salihu Sani, Musa Isa and H.A. Shehu (Miss) prosecuting.<br< p=””
</br<
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Salele: We are ready for the arraignment of the Accused. We have an application to prefer a charge against the Accused. Attached is a copy of the charge, verifying affidavit, names and addresses of witnesses, statement of the accused, summary of witnesses and exhibits we intend to reply. We urge Court to grant the application.
M. Abdullahi for accused, with him M.I. Ashir.
Court: I have read the 3 Court charge which allege the offences of forgery of a Certificate of Occupancy using as genuine the said Certificate of Occupancy and obtaining the sum N10 million under false pretence. I read the Affidavit in support, the summary of the evidence, the statements of witnesses and the accused persons. I also read the documents to be relied upon by the prosecution. The summary of the evidence of the witnesses particularly that of the nominal complainant Nazifi Mohammed and the officer from the Ministry of Lands, Surveys and Country planning including the extrajudicial statements of the accused person have disclosed a prima facie case to charge the accused person for the 3 offences alleged. Accordingly, I hereby grant the leave sought.
Signed
M.T.
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M Alyu
Judge
23/07/2015
Salele: We wish to strike out count 3 of the charge.
Court: Count 3 of the charge is struck out.
Signed
M.T.M Alyu Judge 23/07/2015.
Salele: We apply that counts 1 and 2 in the charge be read and plea of accused be taken.
Abdullahi; No objection.
Abubakar S. Suleima affirmed to interpret from English to Hausa and vice versa
Signed
M.T.M Alyu
Judge
23/07/2075
Court; Count 1 read and explained to accused, forgery punishable under Section 364 of the Penal Code.
Signed
M. T. M Alyu
Judge
23/07/2015
Accused: I understand count 1 read and explained to me. I am guilty.
Court: Count 2 read and explained to the accused. using as genuine a Certificate of Occupancy punishable under Section 364 of the Penal Code.
Signed
M.T.M Alyu
Judge
23/07/2015
Accused: I understand count 2 read and explained to me. I am guilty.
Salele: We apply that the accused be convicted accordingly.
Court: The accused having pleaded guilty both counts of the charge I hereby accept and convict him on both counts 1 and 2 of the
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charge.
Signed
M.T.M Alyu
Judge
23/07/2015
Abdullahi: We plead the Court to temper justice with mercy. He is a young man without Record of criminal offence. He is also remorseful and has saved the time of the Court. We urge Court to give him light sentence. He has 3 Wives and 7 children and he also takes care of his mother and other defendants
Salele: The accused has shown remorse and has no record of conviction and has refunded the N10 million.
Court: Stood down to 12 noon for sentencing.
Signed
M.T.M Alyu
Judge
23/07/2015
Resume 12 noon
Appearances as before.
M. Abdullahi for accused.
Sentence
I have listened to the passionate plea for mercy made by learned counsel for the convict. Indeed learned prosecutor has confirmed that the convict has no record of previous conviction before now. The convict has not wasted the time of the Court and has displayed remorse over the actions for which he was convicted. He also has defendants, 3 wives, 7 children and a mother. I also considered that fact that he has refunded N10,000,000,00 to the nominal complainant. However, the two offences he
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was convicted of are serious felonies that have stiff punishment that may extend to 14 years imprisonment. Forgery and using a forged document is serious offence particularly when the document forged document is document of title to land and use it to defraud another person is frightening and even though the convict is a first offender, it will serve as deterrence to sentence him to some time in prison custody. I consequently hereby sentence the convict on each of the 2 counts to fifteen months imprisonment without option of fine.
The sentences are to run concurrently.
Signed
M.T. M. Alyu
Judge
23/07/2015.?
Underlining Mine
From the foregoing, it is evident that an interpreter was secured for the Appellant, who interpreted the proceedings from Hausa, the language of the Appellant, to English and vice versa. It is also clear that the charges were read over to him and that he was asked to plead to them. It is further noted from the records that his plea was recorded.
?It is therefore incorrect for the Appellant’s Counsel to contend that the trial Court did not ask the Appellant to
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plead or that the charges were not explained to him.
Indeed, in cases where the record shows that after the information was read out to the Accused, he pleaded thereto, without the trial Judge recording specifically that “the charge was read and fully explained to the accused to the satisfaction of the Court” before taking his plea, it has been held that even though it is good practice for the trial Courts to record that “the charge was read and fully explained to the accused to the satisfaction of the Court”, failure to so record will not render the trial a nullity. See Akpan v State (2002) 12 NWLR Part 780 Page 189 at 202 Para G-F per Katsina Alu JSC (as he then was); Eyisi v State (2000) Part 691 Page 555 at 582 Para B-G per Ogundare JSC.
The Courts held that by virtue of Section 150(1) of the Evidence Act 1990 (now Section 168(1) of the Evidence Act 2011, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. Thus, unless the contrary is shown, all acts are presumed to have been regularly done.
?The trial Judge, in the instant
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case, however recorded that he read and explained the charges to the Appellant, following which he was requested to plead. This, I hold, is in absolute compliance with Section 187 (1) of the CPC which requires “the charge 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 or offences charged.”
It is also noted that the Appellant was represented by Counsel, who raised no objections to the procedure in Court.
The Appellant’s Counsel has again contended that the trial Judge, in sentencing the Appellant, did not state the relevant law under which the Appellant was convicted, rendering the conviction and sentence wrongful in law, in view of Section 269 (2) of the Criminal Procedure Code Laws of Kaduna State 1991. Citing the case of Yesufu v. IGP (1960) LLR 140, he submitted that since the wordings of the Criminal Procedure Code are mandatory, failure to comply with the above procedural requirement renders the trial Court’s judgment incurably defective and therefore null and void and the Appellant liable to be discharged and acquitted.
?The Respondent’s Counsel submitted that the
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Appellant is confusing the meaning of “judgment” with that of “sentence,” as a judgment is wider in scope, whereas a sentence is an order which is definite in its nature, type and quantum. Sentence comes after the finding of guilt. It must not be forgotten, he said, that this is a summary judgment. The arraignment and sentence of the trial Court was proper, he submitted, having substantially complied with all the relevant laws.
Section 269 (2) of the Criminal Procedure Code Supra provides as follows:
S 269 (2)
If the judgment is a judgment of conviction it shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced.
As pointed out by the Respondent’s Counsel, the order of Court was a sentence, following the plea of guilt of the Appellant.
Section 187(2) of the CPC states:
If the accused pleads guilty the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.
?By
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this section, following the plea of guilt, once it is not an offence punishable with death, the Court, in its discretion, may convict him summarily on that plea, which the Court did in this case. It was not thus not necessary to proceed to write a judgment, as contemplated by Section 269(2) of the Criminal Procedure Code.
The “Judgment” contemplated by Section 269(2) of the Criminal Procedure Code Supra, I hold, is one written by the Court following the trial and conviction of the accused person. This was not the case in the lower Court. The Appellant’s Counsel by this submission, was thus not batting on a strong wicket.
The Constitutional requirement under Section 36(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is that any person charged with a criminal offence shall be entitled to a fair hearing within a reasonable time. It has not been shown by the Appellant that he was denied a fair hearing or that any miscarriage of justice was occasioned. I accordingly hold that the conviction and sentence of the Appellant were valid in law. I resolve the sole issue for determination against the Appellant.
?This appeal, I
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accordingly hold, is devoid of merit and it is dismissed.
The conviction and sentence of the lower Court are, in consequence, affirmed.
Other Citations: (2016)LCN/8683(CA)
