Federal Republic Of Nigeria V. Akeem Ogunrombi (2019)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
This appeal is against the judgment of the Court of Appeal, Ibadan division (the lower or Court below) delivered on the 10th of December, 2004 which allowed the appeal of the respondent and set aside the conviction and sentence of the respondent by the Federal High Court, Abeokuta (“the trial Court”) vide the latter’s judgment delivered on 27th June, 2012. The respondent herein as an accused person, was arraigned before the trial Court on a charge which is set out below:-
“That you AKEEM OGUNROMBI (M) on or about the 12th day of October, 2010 at lyesi Street, Osi Ota Sanyo Ota, Ogun State, within the jurisdiction of the Honourable Court without lawful authority dealt in 100 grammes of Indian Hemp otherwise known as cannabis sativa, a narcotic drug similar to cocaine, Heroin, and LSD and you thereby committed an offence contrary to and punishable Section 11C of the National Drug Law Enforcement Agency Act Cap N30 Laws of the Federation 2004”.
When arraigned before the trial Court on 23rd of May, 2012 and as borne out from page 4 of the printed record of proceedings, it was
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shown that the charge was read to the accused person now respondent and the trial Court recorded that he pleaded guilty of consuming the drug and not dealing with it. On that backdrop the prosecuting counsel one Mrs. O.A. Ogar applied to amend the charge but the trial Court quickly jumped and ruled that no charge would be amended and thereupon ordered the prosecuting counsel to review his case and ordered that he should proceed with the case. The learned prosecution counsel thereupon called his two witnesses and tendered some exhibits. Upon concluding with his two witnesses the trial Court made some observations and comments on the charge and the evidence adduced by the prosecution in proof of the charge and it ultimately ask the accused to present his allocutus remarks before the learned trial judge finally convicted the respondent and sentenced him to 15 years imprisonment.
Piqued by the judgment of trial Court, the respondent appealed to the lower Court, which allowed his appeal and set aside the conviction and sentence passed on the respondent by the trial Court, apparently due to, inter alia, the failure of the trial Court to provide an interpreter
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throughout the proceedings. It is worthy of note that throughout the proceedings the respondent was not represented by counsel.
Miffed by the decision of the lower Court in discharging and acquitting the respondent, the appellant has now appealed to this Court vide a notice of appeal dated 10th August, 2016 containing two grounds of appeal.
Parties filed and exchanged briefs of argument in keeping with the rule and practice of this Court. The appellant filed an Amended Appellants Brief of argument on 7th March, 2018 which was deemed filed on 18th October, 2018 and which said Amended Appellant’s brief was settled by one Segun Ololade. In the said Amended Appellant’s brief the appellant raised a lone issue for determination which he couched as below: –
“Whether the learned Justices of the Court of Appeal erred in law when they held that the arraignment of the respondent fell far below the position of the law.”
On his part, the learned counsel for the respondent filed his brief on 5th May, 2017 which was also deemed filed on 18/10/18 and was settled by Mrs. L. Omolola Ikwuegu Ayodele Adeyemo. She also decoded a lone issue for determination
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which reads as follows: –
“whether the trial of the respondent is not a nullity for breach of the mandatory provisions of Section 215 of the Criminal Procedure Act and Section 36 (6) (a) & (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (Grounds 1 & 2).
SUBMISSIONS BY LEARNED COUNSEL TO THE PARTIES ON THE SOLE ISSUE FOR DETERMINATION
In arguing this appeal, the learned counsel to the appellant distilled one issue for determination out of the two grounds of appeal. The issue borders on the procedure adopted in arraignment of the respondent. The learned counsel to the appellant argued that the respondent was properly arraigned and that his plea was taken after the charge was read and explained to him to the satisfaction of the Court. He argued that the trial Court did not breach the respondent’s fundamental right to fair hearing as the Court acted in accordance with the letters and spirit of the provision of Section 215 CPA. He submitted further that unless it appeared clearly from the records that accused did not understand the language used at his trial and that interpretation for the benefit of the accused was
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refused, all acts are presumed to have been legitimately done until the contrary is established, He cited the case of NWACHUKWU v STATE (2007)17 NWLR (pt.1062) page 31. He argued the plea was valid and proper as the respondent did not raise any objection before he made his plea. He urged the Court to resolve this issue in favour of the appellant and allow the appeal.
In response to the argument of the learned appellant’s counsel, the learned counsel to the respondent also formulated a sole issue for determination. The issue reads whether the trial of the respondent is not a nullity for breach of provision of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution.
The learned counsel to the respondent again submitted that the entire trial of the respondent before the trial Court is a nullity due to the apparent failure of the Court to provide an interpreter to the respondent. He referred to the judgment of the Court below at page 81 of the record. He also argued the evidence of PW1 at the proceedings of 23rd May, 2012 clearly shows that the only language understood by the respondent, is Yoruba language. He submitted
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that before a Court can be said to be satisfied with reading and explanation of a charge to an accused person, such an accused person must be informed in the language he understood in detail of the nature of the offence. He argued that the emphasis is not whether a Court is satisfied that the charge has been read and explained to the accused person, but that the evidence that the accused person understand the details of the nature of the offence. He argued that it is the duty of the Court to ensure strict compliance with Section 215 CPA and Section 36 (6) (a) of the 1999 Constitution (as amended) by reflecting such compliance in its record. He cited the case of Effiong v State (1995)1 NWLR (pt.373) page 507 (quotation at page 9 of the respondents brief). He argued that the trial Court ought to have ensured strict compliance with those provisions, as the respondent was not represented by counsel before the trial Court. He argued that presumption regularly under Section 168 Evidence Act could not apply to the instant case and that even if it is conceded that the presumption applies, it had been rebutted by the evidence of PW1 before the trial Court.
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He submitted further that the requirement to comply with the provision of Sections 215 of CPA and 36 (6) of 1999 Constitution is more rigid where the accused person does not speak English. He cited the case of DURWODE V THE STATE (2000)15 NWLR (pt.691)476. He urged the Court to affirm the decision of the Court below and dismiss the appeal.
As it relates to “arraignment” it is apposite to reproduce at the trial Court, below all that had transpired at the trial Court, which in fact is the gravamen of the sole issue raised and canvassed by both learned counsel in this appeal. It is clearly shown that when the accused/respondent was arraigned before the trial Court on 23rd May, 2012 the proceeding of that day went on as reproduced below. The excerpt of the proceeding of that day as shown on page 4 of the record of proceedings will be referred to here. The proceedings read thus:-
“FEDERAL REPUBLIC OF NIGERIA
AND
AKEEM OGUNROMBI
Case called
O.A. Ogar: appears for the complaint
Accused person in Court.
Ogar:- matter is for arraignment. I apply that charge be read over to Accused person in order the plea be taken (sic)<br< p=””
</br<
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Court:- Charge read Accused person pleads guilty to consuming the drug. Not dealing
Ogar:- I wish to amend the charge
Court:- No charge will not be amend. Review your case and let us know whether the exhibit is the accused persons “weeds”
After what transpired above, the prosecutor proceeded to call his witnesses and tendered the relevant exhibits which were all admitted in evidence. Thereafter, the trial Court convicted the respondent after taking his allocutus and sentenced him to 15 years imprisonment. The question that remains to be answered is Was the accused properly arraigned before the trial Court
It must be stated that for there to be a valid arraignment, compliance must be had to the provisions of Section 215 of the Criminal Procedure Act. In other words, there must be strict compliance with those provisions, in order to have a valid arraignment. In multiplicity of decided authorities, this Court had laid down some guiding principles of a valid arraignment of an accused persons as provided by Section 215 of CPA. Some of these principles include the followings:-
(1) That the person tried shall be placed before the Court unfettered.
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(2) 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.
(3) Such person shall be called upon to plead instantly thereto.
See Akpiri Ewe vs State (1992) NWLR (pt.246)147; OLABODE VS THE STATE (2009) 11 NWLR (pt.1152)254; KAJOLA V COP (1973) 9 -10 SC (REPRINT) 24; DIBIE & ORS V THE STATE (2007) 9 NWLR (pt.1038)30 or (2007)3 SC (pt.1)176; KAJUBO vs THE STATE (1988)SC 1 NWLR (pt.73) 721.
A valid arraignment should therefore entail that it must be conducted in open Court and shall involve the reading of the charge or information or indictment to the accused person or stating to him the substance of the offence or charge to the satisfaction of the Court before taking his plea. See Oyediran vs The Republic (1967) NMLR 122. All these processes are mandatory and not directory.
Section 215 of CPA must therefore, be strictly complied with. That provision is even further supported by the provisions of Section 36 (6) of the 1999 Constitution (as amended) which provides as follow:-
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“Every person who is charged with a criminal offence shall be entitled (a) to be informed promptly in the language he understands and the details of the nature of the offence”.
These constitutional provisions are mandatory and therefore must be strictly complied with. This is so, Because strict compliance with mandatory requirements relating to proceedings to be followed in criminal trial, is a pre-condition or pre-requisites of a valid trial. Where a trial Court fails to adhere strictly to a statutory procedure in criminal matter, for instance, as in this instant case, with the provision of Section 215 of CPA or Section 36 (6) of the 1999 Constitution, such trial is a nullity and therefore must be so declared. See EYOROKOROMO v THE STATE (1979) 6-9 SS C3; JOSIAH v THE STATE (1985)1 SC 406.
In the present case, considering the charge on which the appellant was arraigned before the trial Court, it can be noted that the Court did not comply with the provisions of Section 215 of CPA and Section 36 (6) (a) & (b) of the 1999 Constitution. The charge was not read and explained to him even if he really understood the language of the Court. The charge he faced
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trial was that he dealt with substance or weeds confirmed to be Indian Hemp and when read to him, the record clearly shows that he said he consumed it. That reply by the accused prompted the prosecuting counsel to apply to amend the charge in line with what the respondent pleaded or wanted to plead. But unfortunately, the learned trial Judge jumped in and ordered that there was ‘no amendment to be made’. The trial Judge simply recorded plea of “guilty” and proceeded to convict him. That clearly shows that the charge was not properly read and explained to him because what he was charged of committing was different from what he said he committed. Even at that, in the course of the proceedings, when the weeds were tendered the accused/respondent seemed to have objected on the identity of the drug of substance because he said the one tendered by the prosecution was not his own substance or and that his own substance was in a different container but the trial Court simply glossed over that aspect of his objection and proceeded to convict him.
I must reiterate that a close and dispassionate look at the procedure adopted by the learned trial Judge is in total
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non-compliance with the provisions of Section 215 of CPA and Section 36 (6) (a) & (c) of the 1999 Constitution and is also a total neglect of all the principles guiding arraignment of accused person in Court. As I stated supra, those guiding principles are mandatory and not directory and must be strictly complied with in criminal proceedings. The learned trial Judge in this instant case, threw them overboard and therefore such neglect or non-compliance rendered the whole proceeding a nullity.
It is sequel to that that I am in entire agreement with the lower Court when in its judgment it stated as follows:-
“Because the arraignment and subsequent trial of the appellant are vitiated by a fundamental vice and failure to strictly observe significant steps (sic) in the conduct of a proper criminal trial, the entire proceedings remain a nullity and liable accordingly being set aside (sic)”
Thus, I am in entire agreement with the above finding or remarks by the lower Court.
The resultant effect of all that I have posited above, is that the sole issue raised in this appeal must be and is hereby resolved in favour of the respondent.
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In the result, I adjudge this appeal as unmeritorious. It fails and is accordingly dismissed. I affirm the judgement of the lower Court which set aside the conviction and sentence of the respondent. Appeal lacks merit. It fails and is accordingly dismissed. A verdict of acquittal and discharge is entered in favour of the respondent
SC.766/2015
