Akpiri Ewe V. State (1992)
LawGlobal-Hub Lead Judgment Report
L. KUTIGI, J.S.C.
The appellant was at the Abakaliki High Court charged with the offence of murder contrary to Section 319 of the Criminal Code. Cap. 30 Laws of Eastern Nigerian 1963. He was found guilty and sentenced to death. His appeal against sentence and conviction to the Court of Appeal, Enugu Division was dismissed. He has now further appealed to this Court.
Briefs of argument were filed and exchanged by the parties.These were adopted at the hearing. Oral submissions were also made in addition thereof.
At the hearing, which was on 28th day of May, 1992, the Court suo motu drew attention of counsel to page 3 lines 25-30 of the record where the plea or the appellant was recorded and then asked to be addressed on whether or not the appellant was properly arraigned as provided for by Section 215 of the Criminal Procedure Act.
Mr. C. C. Eneh learned assistant Chief Legal Officer for the respondent conceded that section 215 of the Criminal Procedure Act was not sufficiently complied with. He said although the appellant pleaded not guilty, there was nothing on the primed record to show that the charge was read and explained to the appellant as required by section 215 of the Criminal procedure Act. It was then submitted that the omission did not vitiate the trial since the appellant was represented by counsel throughout the trial and no objection was raised on the point by his counsel.
Chief Akinyosoye learned counsel for the appellant on the other hand said failure to read and explain the charge to the appellant showed that the appellant did not know the charge he was facing. The law had not been complied with. There was therefore no valid and proper arraignment of the appellant. The trial was equally not valid. He said the appeal should he allowed.
In view of the importance and mandatory nature of the provisions of section 215 of the Criminal Procedure Act and the order I intend to make in the end. I do not wish to go over the facts of the case and the arguments in the briefs of counsel based on the grounds of appeal filed before this Court. I will confine myself to the procedure as laid down in section 215 of the Criminal procedure Act only.
Now section 215 of the Criminal Procedure Act, Cap, 80, Laws of the Federation of Nigeira, 1990 reads as follows:
“215. 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 services 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 therein.”
(Italics is mine for emphasis only).
It is clear from Section 215 above that for a proper and valid arraignment of an accused person. the following pre-requisites must be established to exist-
- The person to be tried shall be placed before the court unfettered:
- The charge or information shall be read and explained to him to the satisfaction of the court by the registrar or other officer of the court:
- Such person shall be called upon to plead instantly thereto.
Failure to comply with any of the above conditions will of necessity render the whole trial a nullity (See Sunday Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Eyorokoromo v. The State (1979) 6-9 S.C. 3. And as was the rightly pointed out by this Court in Kajubo v. The State (supra) the mandatory nature of section 215 of the Criminal Procedure Act is further reinforced and confirmed by section 33(6)(a) of the 1979 Constitution wherein it is provided that –
“33. (6) Every person who is charged with a criminal offence shall be entitled-
(a) to be informed promptly in the language that he understand and in detail of the nature of the offence:
There is thus a duty on the part of the trial court to ensure strict compliance with the provisions of the laws and plainly showing so on its record.
Let us now examine the record; and see where and how the purported arraignment of the appellant was effected. On Tuesday the 1st day of July, 1980 at page 3 lines 25 -34 the High Court’s proceedings were recorded thus-
ON TUESDAY, THE 1ST DAY OF JULY, (1980)AB/15C/78
THE STATE V. AKPIRI EWE
Accused in court, pleads not guilty to charge.
Mr. Achike for the State
Mr. Nwali Ngwuta for Ugwumba for the accused.
Case adjoined to 23/9/80 for hearing.
(Sgd.) O. Adimora
JUDGE
1/7/80′
On 23/9/80 the case proceeded and the prosecution called Mbaru Akpiri (P.W.1) and Corporal No. 9860 Theodore Amosike (P.W.2).
Looking at the court’s proceedings of 1/7/80 above, one is left in no doubt at all that the provision of Section 215 of the Criminal Procedure Act has clearly not been complied with. An arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the Court, then followed by the taking of the plea (See Oyediran v. The Republic (1967) NMLR 122). The record did not show that the trial Judge directed the registrar or any officer of the Court to read and explain the charge to the appellant. Neither did the record show that the charge was even read to the appellant talk less of explaining the same to him the language he understood. It is beyond doubt that strict compliance with the mandatory provision of section 215 of the Criminal Procedure Act above is a prerequisite of a valid trial, and where a trial court proceeded to try an accused person without strictly complying with the provision of the section as in this case, the trial will be declared null and void (See Eyorokoromo v. The State (supra) Josiah v. The State (1985) 1 S.C 406 at 416 (1985) 1 NWLR (Pt. 1) 125. I have therefore no hesitation whatsoever in declaring the proceedings in the trial High Court and the Court of Appeal, Enugu as null and void. (See Kajubo v. The State (supra). The appeal therefore succeeds.
The only question to be considered now is that of appropriate consequential order the appeal having succeeded.
It is clear from the record of proceedings as a whole that the evidence revealed in the purported trial discloses a substantial case against the appellant. This is therefore a case for a proper trial of the appellant. (See Queen v. Edoche (1962) 1 All NLR 22; (1962) 1 SCNLR 22; Adisa v. Attorney-General Western Nigeria (1965) 1 All NLR 412; Queen v. Ogor (1961) 1 All NLR 70; (1961) 1 SCNLR 121 Okoro v. The State 14 W.A.C.A., 370. It is accordingly hereby ordered that the case be remitted to the High Court of Enugu State for a fresh trial of the appellant by another Judge.
S. KAWU J.S.C: I have read, in draft, the judgment of my learned brother, Kutigi, J.S.C, which has just been delivered. I agree entirely with his reasoning and his collusion.
It is plain on the record that the provision of section 215 of the Criminal procedure Act. Cap. 80 Laws of the Federation of Nigeria, 1990, which are mandatory were not complied with by the trial Court. In the circumstances the appellants trial is a nullity vide Eyorokoromo v. The State (1979) 6-9 S.C. 3, and Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721. The appeal succeeds and it is accordingly allowed. I too will direct that the case be remitted to the High Court of Enugu State for retrial by another Judge of that Court.
P. NNAEMEKA-AGU, J.S.C.: I have had a preview of the judgment of my learned brother. Kutigi, J.S.C., just delivered. I entirely agree with his reasoning and conclusions therein.
It appears clear to me that by the joint effect of section 215 of the Criminal Procedure Law. Cap. 31 Laws of Eastern Nigeria, 1963, applicable in the old Anambra State and section 33(6) of the Constitution of the Federation, 1979, that the need for a charge being explained to an accused person in the language he understands during the taking of his plea is his constitutional right as well as a sine qua non for a valid plea and a precondition for his trial. As this is the position, it requires strict compliance otherwise there is no valid trial. This has been the attitude of the courts in many decided cases including – Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Alake v. The State (1991) 7 N.W.L.R (Pt.205) 567 at 589: Okon v. The State (1991) 8 NWLR (Pt.210) 424. It is important also that the record of proceedings should ex facie show that the requirement of the law have been fully complied with.
As in this case, the record fails to hear out full compliance with the requirements of the law. I agree that the trial must be declared a nullity. There was no valid trial at all.
The appeal, therefore, succeeds and is allowed. As there has been no valid tiral, I agree that the case must be remitted to the High Court of Enugu State, holden at Abakaliki, for a trial de novo by another Judge.
SC.210/1991
