Bashiru Lasisi V. The State (1994)
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GEORGE ADESOLA OGUNTADE , J.C.A.
The appellant was the first of the two accused persons who were charged before the Oshogbo High Court. The offence against the appellant reads:
“Rape contrary to section 298 and punishable under section 299 of the Criminal Code cap 28 Vol. 1 Laws of the Western Region of Nigeria (now applicable in Oyo State)
Particular of offence
Bashiru Lasisi (M) on or about the 18th of September, 1980 in a bush along Inisa-Okua Road in the Oshogbo Judicial Division had sexual intercourse with Sabitiyu Olatunji (F) without her consent.”
The record of proceedings transmitted to this court shows that the appellant was first brought before Babalakin J. (as he then was) on 8th November, 1982. On that day the appellant was granted bail in the sum of N2,000.00 with one surety in like sum. The charge was not read to the appellant. Neither was his plea taken. The matter later came before the lower court on 25/11/82, 13/1/83, 9/2/83, 22/2/83, 15/3/83, 6/4/83, 2/5/83, 11/5/83, 24/5/83, 14/6/83 and 23/6/83. The trial took off on 22/7/83 with the evidence of the complainant Sabitiyu Olatunji as the first prosecution witness. On the several dates listed above when the case came up before the trial finally started, the charge was never read to the appellant. Neither was the plea taken. The same thing also happened in respect of the 2nd accused before the lower court who was also convicted. He did not appeal against his conviction.
Arising from my observation above that the charge was never read to the appellant and his plea taken, the position is that the appellant was never arraigned before the lower court. Section 215 of the Criminal Procedure Law (Cap 30) Laws of Oyo State, 1978 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. State (1988) 1 NWLR (Pt. 73) 721 at 731 the Supreme Court said as to a proper arraignment that:
“For a valid and proper arraignment of an accused person, the following conditions as contained in section mentioned (supra) i.e. section 215 of the C.P.A.), must be satisfied:
1. He shall be placed before the Court unfettered unless the court shall see cause to otherwise order;
2. 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
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in section 100 of the Criminal Procedure Law)
Failure to comply with any of these conditions will render the whole trial a nullity.”
In Kajubo v. State (supra) the High Court which tried the accused failed to ensure that the charge or information was read to the accused to the satisfaction of the court by the registrar of the court. Although the High Court took the plea of the accused, the trial was pronounced a nullity by the Supreme Court for failure to explain the charge or information to the accused.
Commenting on the non-compliance with section 215 of the Criminal Procedure Law in Kajubo v. State (Supra) the Supreme Court per Wali, J .S.C. said:
“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 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 – see Godwin Josiah v. The State (1985) 1 SC 406 at 416: (1985) (Pt.1) 125. The excerpts of the trial court’s proceedings quoted did not show that the conditions laid in section 215 of the Criminal Procedure Law were complied with.”
And speaking in the same vein in the case Oputa, J.S.C. observed:
‘The mandatory provisions of section 215 of the Criminal Procedure Act that the information or charge should be firstly read over to the accused, then secondly, explained to the accused and thirdly, explained to him to the satisfaction of the Court are not merely cosmetic; they are not mere semantics – No. They are provisions considered necessary to ensure that the accused person understands and appreciates what is being alleged against him, to which he is required to make a plea. Section 215 C.P.A. sets out the mandatory rules required by law for a proper arraignment. Now arraignment is ad rationem ponere; it is calling an accused person to reckoning.
Now how can anyone be called to reckoning if he does not know or does not fully understand the allegations being made against him?
It is a notorious fact that English, the language of the Court, the language in which charges and informations are drafted, is not the mother tongue of Nigerians. It is also correct that most Nigerians are illiterate in English and that even those of them who are literate may not easily follow and complement the language of the court.”
The error by the lower court in the instant case is more serious than in the Kajubo case. In this case, the plea of the appellant was not taken. Clearly therefore, the trial before the lower court is and must be pronounced a nullity. I so pronounce it. Now, ought I to order a retrial in this case? I think not. In Abodundu & 4 Ors. v. The Queen (1959) SCNLR 162 at Pp. 166-167; (1959) 4 F.S.C.70 at Pp 71/72 the principles on which the court should act in considering whether or not to order a retrial were stated thus:
“(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such character that on the one hand the trial was not rendered a nullity and on the the other hand this court is unable to say that there has been no miscarriage of justice and to invoke the proviso to section 11 (1) of the Ordinance;
(b) that leaving aside the error or irregularity the evidence taken as a whole discloses a substantial case against the appellant;
(c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;
(d) that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and
(e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
In Abu Ankwa v. The State (1969) 1 All NLR 133 the Supreme Court held that all the above principles laid down in Abodundu’s case (supra) must co-exist to enable the court send back a case for re-trial.
The offence against the appellant was stated on the information to have been committed on 18th September, 1980. Appellant was first brought before the lower court on 8th November, 1982. The trial commenced on 22/7/83. Judgment was given on 13/12/83 when the appellant was sentenced to 12 months imprisonment with hard labour. On 13th October, 1983, the appellant filed the notice of appeal while a prisoner at the Federal Prisons. Ilesha. The records of the lower court do not reveal that the appellant was granted bail pending appeal. He should have therefore served the sentence in full. It will in my view be oppressive to put him through another trial.
Before I conclude this judgment, it is pertinent to observe that the trial Judge observed in the body of the judgment that
“The accused persons pleaded not guilty to the charges.”
This statement was however not borne out by the records of the lower court. As stated by the Supreme Court in Godwin Josiah v. The State (1985) 1 SC 406 at 416; (1985) 1 NWLR (Pt.1) 125 the records of the court must show compliance with the provisions of section 215 of the Criminal Procedure Act. In the instant case, the record of the lower court does not show such compliance,.
In the appeal before us. Mr. Bankole Aluko for the appellant has written quite a comprehensive and brilliant brief. I have not had to determine with the merits of the case before the lower court with which the appellant’s brief dealt. The deciding issue has turned on the failure of the lower court to observe a fundamental procedural principle of criminal justice that an accused must be properly arraigned before there can be a valid trial.
In the final conclusion, I pronounce the trial of the appellant before Babalakin J (as he then was) a nullity, Appellant is accordingly discharged and acquitted.
Other Citations: (1994)LCN/0176(CA)
