Lawan Sani V. The State (1999)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

The appellant was charged with rape punishable under Section 283 of the penal code in that he had sexual intercourse with a four year old girl. At the trial the prosecution called three witnesses. At the conclusion of the evidence for the prosecution, the defence made a no case submission which was overruled by the trial judge. The appellant then gave evidence on his own behalf. He did not call any other witness. After hearing submission of counsel the trial judge, in a reserved judgment, found the appellant guilty of committing the offence. The appellant was convicted and sentenced to Ten (10) years imprisonment.

The appellant was aggrieved with this decision, he therefore appealed to this Court. The Notice of Appeal contained two grounds of appeal. The appellant filed his brief of argument in which he identified two issues for the determination of the appeal. The respondent also filed a brief. In the respondent’s brief two issues were formulated for determination. At the hearing of the appeal both counsel adopted their respective brief of argument.

It was during the course of writing this judgment that I discovered that nowhere in the record of appeal was the appellant called to enter his plea. I therefore asked the Registrar of this court to write to the Two (2) counsel to come and address us on the effect of not entering a plea on a criminal trial. Counsel for the appellant appeared while the respondent’s counsel even though he was served failed to appear. Mr. Ibikunle learned counsel for the appellant submitted that Section 187(1) of the criminal procedure code provided that a plea is mandatory. He also submitted that Section 187(1) is similar to the provision of Section 215 of the Criminal Procedure Act and stated that in Effiom v. The State (1995) 1 NWLR (Pt. 373) 507; Vol. 28 LRCN 320 at 442, it was held that this provision is mandatory and not directory and must be strictly complied with. He submitted that without a proper plea, the trial is a nullity. He also referred to Section 33(6)(a) of the 1979 Constitution. He referred to Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721; (1988) Vol. 1 NSCC 275 at 278and submitted that the trial was a nullity. He also submitted that the appellant should be set free because it would be oppressive if he is put on trial again. He urged us to allow the appeal.

Section 187 of the Criminal Procedure Code provides:

“187(1) When the High Court is ready to commence the trial the accused shall appear 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.”

It could be seen that the mandatory requirements of Section 187 of the CPC stipulates that:

(a) The accused person must be brought before the court.

(b) The charge must be read out in court and explained to him and

(c) He shall be asked whether he is guilty or not guilty of the offence charged.

These conditions are mandatory. The accused person is properly and validly arraigned before the court only when these conditions are complied with. Also Section 33(6) of the Constitution of the Federal Republic of Nigeria 1979 provides as follows:

“Every person who is charged with a criminal offence shall be entitled:

(a) To be informed promptly in the language that he understands and in detail of the nature of the offence:

The provisions of Section 215 of the Criminal Procedure Act are similar to those of Section 187 of the Criminal Procedure Code and it was held by the Supreme Court for a valid and proper arraignment of an accused person, the conditions as contained in Section 215 of the C.P.A. must be satisfied and failure to comply with any of the conditions will render the whole trial a nullity. See Eyorokoromo v. The State (1979) 6 – 9 SC 3; Godwin Josiah v. The State (1985) 1 NWLR (Pt. 1) 125 and Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721.

In Kajubo v. The State (supra) The Supreme Court held at page 731 per Wali J.S.C. that:

“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. See Godwin Josiah v. The State (1985) 1 SC 406 at 416; (1985) NWLR (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.”

Oputa J.S.C. also in the same case stated:

“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 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 information 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 comprehend the language of the Court.”

In our present case, the charge was not read out and explained to the accused person. He was not asked whether he was guilty or not guilty of the offence charged. In short the appellant’s plea was not taken. The trial is therefore a nullity and I so hold.

The next issue is to consider whether or not to order a re-trial. In Abodundu v. The Queen (1959) SCNLR 162, the Supreme Court stated the principles to be followed by the Court in deciding whether or not to order a retrial. It was stated at pp. 166 – 167:

“We are of the opinion that, before deciding to order a retrial, this Court must be satisfied: (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 one hand the trial was not rendered a nullity and on 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 a retrial would occasion a greater miscarriage of justice that to grant it.”

In Abu Ankwa v. The State (1969) 1 All NLR 133. The Supreme Court held that all there factors must co-exist so that a case may be sent back for retrial. See also Akinfe v. The State (1980) 3 NWLR (Pt 85) 729.

I have very carefully considered the circumstances of this case. The trial was a nullity because the appellant’s plea was not taken. Leaving this error aside, looking at the evidence adduced by the prosecution as a whole, It discloses substantial case against the appellant. Also the appellant was accused of committing rape, which is not a trivial offence. The fact that the trial was a nullity coupled with the fact that the appellant was convicted only last year and is yet to serve the sentence imposed upon him, moreso there is no such special circumstances as would render it oppressive to put the appellant on trial a second time. In my view, this is a proper case to be sent back for retrial.

In the result, I declare the appellant’s trial a nullity. I hereby send back the case to the Katsina High Court for retrial.

In the result, the appeal succeeds and is hereby allowed. The case is sent back to the Katsina High Court for retrial before another Judge.

Other Citations: (1999)LCN/0645(CA)