Ehimen Esene Vs. The State (2017)

LawGlobal-Hub Lead Judgment Report

Olabode Rhodes-Vivour, JSC

This is an appeal from the decision of the Court of Appeal, Jos Division delivered on 23 May, 2014   which affirmed the conviction and sentence of the appellant by a Jos Federal High Court. The appellant was convicted by the trial court and j sentenced to various terms of imprisonment for offences under section 518 (5) of the Criminal Code, Sections 5(1) and 27 (1) of the Firearms Act and I   section 15 (2) of the Economic and Financial Crimes Commission  Act, 2004. Dissatisfied with the judgment of the trial court, the appellant filed an appeal before the Court of appeal Jos Division.   

That court affirmed the decision of the trial court. Still not satisfied with the conviction by the trial court, affirmed by the Court of Appeal the appellant has appealed to this court on one ground of appeal from which he formulated a sole issue for determination of this appeal. The sole issue reads; Whether from the records of proceedings there was a proper arraignment of the appellant before his trial, conviction and sentenced by the trial court. Learned counsel for the respondent adopted the sole issue formulated by the appellant.

The sole issue formulated by the appellant s learned counsel shall be considered in resolving, this appeal. At the hearing of the appeal on 15 December 2016 learned counsel for the appellant, R. George esq, adopted the appellant s brief filed on 25/8/l4 and urged the court to allow the appeal, while learned counsel for the respondent C. Ihua-Maduenyi esq, adopted the respondent s brief filed on 8/9/14 and urged the court to dismiss the appeal and affirm concurrent findings. Learned counsel for the appellant observed that the appellant, as one of the accused persons was not properly arraigned before the trial court, contending that the charge was not sufficiently read and explained to him in the language he understands to the satisfaction of the court. He further observed that the appellant s plea to the charge was not recorded as provided by the law. He submitted that where there is non-compliance with requirements for valid arraignment the trial is a nullity.

Reliance was placed on Yerima v State (2010)14NWLR (Pt.l231) p.25 Okli v State (2012)1NWLR (Pt.l281) p.385  Kayode v State (2008)1NWLR (Pt. I068) p.28l   PAGE| 3 Concluding he submitted that the effect of failing to comply with section 187 (1) of the Criminal Procedure Code and Section 215 of the Criminal Procedure Act renders the entire proceedings a nullity. He urged this court to allow the appeal and set aside the conviction and sentence of the appellant. On his part learned counsel for the respondent observed that there was compliance with section 215 on the Criminal Procedure Act when the appellant was arraigned and took his plea on 15 June 2010. Reference was made to pages 67-68 of the Record of Appeal. Reliance was placed on Lufadeiu v Johnson (2007) ALL FWLR (Pt371) p.1532 Erekanure v State (1993) 5NWLR (pt.294) p.385 Concluding, he submitted that the appeal is devoid of merit and should be dismissed. In this appeal the appellant is satisfied with the judgment of the trial court delivered on 16 December, 2010 and affirmed by the Court of j Appeal on 23 May, 2014.

The ONLY complaint of the appellant is arraignment in the trial court was fundamentally flawed, thereby rendering  the whole trial a nullity and so entitling him to an acquittal. Indeed once an arraignment of an accused person fails to comply with section 215 of the Criminal procedure Act, the trial which follows, no matter how well conducted and decided is a nullity.  It is therefore fundamental that the trial judge ensures that he complies strictly with the provisions of section 215 of the Criminal Procedure Act when an accused person is arraigned before him to take his plea, and the judge must may be correct recordings to show that there was compliance.

Section 36 (6) of the Constitution states that:   “Every person who is charged  with a criminal offence shall he entitled to- (a)    be informed promptly in the language that he  understands and in details of the nature of the offence.” Section 215 of the Criminal Procedure Act provides that: “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 PAGE| 4  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 For there to be a valid arraignment of the accused person, the following conditions, contained  in section 215 (supra) must be satisfied:

1.    the accused person shall be placed before the court unfettered unless the court is satisfied that for safety concerns be should be fettered;

2.    the charge shall be read and explained to the accused person in the language he understands to the satisfaction of the court by the registrar or any other officer of court;

3.    the accused person shall then be called upon to plead to each charge;

4.    the plea of the accused person shall be instantly recorded. Failure to comply with any of the above renders the whole trial a nullity. See   Luladeju v Johnson (2007) ALL FWLR (Pt371) p.1532 Timothy v FRN(2012)6SC(Pt.III)p.l59 Madu v State (2012)6SC(Pt I)p.80 I shall now reproduce relevant extracts from the Record of’ Appeal to see if there was compliance with the provisions of section 215 of the Criminal Procedure Act, when the appellant was arraigned before a Jos Federal High Court on 15 June, 2010. The record of proceedings for 15 June 2010 runs as follows: ” All the accused person are present. Ihua-Maduenyi C.U. AS. Garba — appearing with A Arninu for all the accused persons. Ihua-Maduenyi – This matter is coming up for the 1st PAGE| 5 time; we humbly apply that the accused be allowed to take their plea. All the accused persons indicate that they do not  understand English Mr. Peter Sani is called interpreter on Oath  Plea – Charge is read to all the accused persons in  English language and translated by the interpreter from English to Hausa language. To Count 1 all the accused persons acknowledge that they understand the charge and plead not guilty to the charge. To Count II the 1st,3rd ,5th ,8th, 11th, 13th and 14tth accused acknowledge that they understand the charge and plead not guilty as charged. To Count III-All the accused persons acknowledge that they understand the charge and plead not guilty. Ihua-Maduenyi: May we apply to come back on the 1st   and 2nd   to come back  to  take  the trial ……….” This is what the Court of Appeal had to say on the arraignment . “The appellant has not proved any irregularity in his arraignment before the lower court. He has also not shown how a miscarriage of justice has been occasioned to his disadvantage in the proceedings of  the lower court on 15 June, 2010, when he was  arraigned before that court.

On the whole I hold that the lower court complied with the provisions of  section 215 of the Criminal Procedure Act when the appellant was arraigned before it and his plea to the PAGE| 6 (3) counts charge was taken. In the result, I resolve  the lone issue against the appellant”. There were fifteen accused persons arraigned before the Federal High Court Jos on 15 June, 2010.The appellant was one of them. He was accused person number 3. All of them were charged on three counts as stated earlier in this judgment. There is an irrebutable presumption after examining proceedings before the court on 15 June 2010 that the appellant was placed before the court unfettered.

The charge was read and explained to him in Hausa language, the language he understands, to the satisfaction of the court, more-so as neither he or his counsel at that time complained of  not understanding the charge. The appellant entered a plea of not guilty to the three counts charge and his plea was recorded as not guilty. I am in the circumstances satisfied that the learned trial judge complied with the provisions of section 213 of the Criminal Procedure Act. By complying with section 215 of the Criminal Procedure Act the learned trial judge ensured that the appellant was given a fair hearing as provided by section 36 (6) of the Constitution. There is no merit in this appeal. Appeal dismissed.

Other Citations: (2017) LCN/4542(SC)