Yawale Sharfal Vs The State (1992)
LawGlobal-Hub Lead Judgment Report
O. OGWUEGBU, J.S.C.
The appellant and five others were charged before the High Court of Borno State in the Potiskum Judicial Division with the offence of culpable homicide punishable under Section 221(b) of the Penal Code Cap.89. Laws of Northern Nigeria, 1963.
The appellant was the third accused in the court of trial. He and the 1st accused Inusa Na Yalwa were convicted of the offence and sentenced to death by hanging.
Both of them appealed against their conviction and sentence. The Court of Appeal (Jos Division) dismissed their appeals and confirmed the decision of Kuyatsemi, J.
Dissatisfied with the decision of the Court of Appeal, the appellant, – Yawale Sharfal appealed to this court. No notice of appeal was filed on behalf of Inusa Na Yalwa but at page one line 50 of the appellant’s brief it is recorded that the 1st accused – Inusa Na Yalwa had since died in prison.
The notice of appeal dated 22nd July, 1991, was filed on 23rd July, 1991 with the leave of this court by G. Brown-Peterside Esq., (SAN). It contains two grounds of appeal which read thus:
(1) The learned Justices of the Court of Appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, and this occasioned a miscarriage of justice:
(2) The whole proceedings amount to a nullity as the Court of Appeal had no jurisdiction to entertain the same, since on the face of the record there was no proper plea taken as required by law’”
Briefs of argument were filed by the appellant and the respondent on 27th August, and 4th November, 1991 respectively. The appellant also filed a reply brief on 26th February, 1992.
At page two paragraph 1.08 of the appellant’s brief of argument, the learned Senior Counsel for the appellant stated that he would rely only on ground two during his argument before this court. Only ground two was argued in the appellant’s brief of argument. Since no argument was advanced in respect of ground one, it is deemed abandoned and I hereby strike it out.
When the appeal came up for hearing on 25th June, 1992, both the appellant’s and the respondent’s counsel were absent. A letter dated 20th June, 1992 was written to the Chief Registrar of this court by the appellant’s senior counsel stating that his instructions were not perfected and as a result, he would be unable to attend the court. He requested the court to treat the appeal as having been argued on the basis of brief filed by both parties. Acting under Order 6, rule 8(b) of the Supreme Court Rules, the appeal was treated as having been argued and I am considering it as such.
The appellant postulated two issues for determination:
“(1) Can it be said, having regard to the manner in which the plea of the appellant was taken by the learned trial Judge, vis-a-vis the law on the same, that the appellant’s trial was valid either before the court of first instance or the Court of Appeal which entertained and determined the said Appeal
(2) If the answer to the Issue No.1 is in the negative, then is the appellant not entitled to have his conviction and sentence set aside in the interest of justice having regard to the circumstances of this case”
The learned senior counsel submitted in his brief of argument that in every criminal trial, the plea of the person or persons charged must first be taken before the same commences and that the commencement referred to is the calling of evidence by the prosecution.
He further stated that the plea must be taken in the manner prescribed by law for the trial to be valid and in a situation where more persons than one are charged jointly with the same offence, the pleas of such persons must be taken separately and the record must show it. He cited the case of Rex v. Zenvinula & Ors. 12 WACA 68.
He referred the court to page 5 lines 17-19 of the record for the plea of the first five accused persons where the appellant was the 3rd accused. He submitted that the plea as recorded by the learned trial Judge which plea included that of the 3rd accused (the appellant) was not in accordance with the law. He further submitted that the plea as recorded in the instant case was not only irregular but went to jurisdiction.
He cited the cases of Sam v. The State (1991) 2 NWLR (Pt.176) 699 at 708, Duval v. Commissioner of Police (1962) 2 All NLR 116 at 117 and Adamu v. The State (1986) 3 NWLR (Pt.32) 865 at 879-880. He urged the court to hold that the trial before the court of first instance was a nullity as no valid plea was taken in the manner required by law.
In the event of issue one being answered in the negative, learned senior counsel stated that the offence was committed on 17th June, 1980, the accused was arrested the same day and has remained in custody since then. It cannot therefore be said that the accused has had his civil rights and obligations determined within a reasonable time as provided in section 33(4) of the Constitution of the Federal Republic of Nigeria. 1979 as amended. He urged the court to set aside the conviction and sentence and decline to order a retrial as to do so will constitute inhuman treatment.
In the respondent’s brief, the learned Assistant Director of Public Prosecutions, Borno State devoted the first six pages of his brief of argument in arguing ground one of the grounds of appeal which was abandoned by the appellant’s counsel.
In arguing the issues based on ground two of the grounds of appeal, the learned Assistant Director of Public Prosecutions submitted that the manner in which the plea was taken in the trial court was right and did not occasion any miscarriage of justice and did not mislead the appellant in his defence.
He further stated that the plea of the appellant was correctly taken and recorded in accordance with the provisions of Section 187(1) & (2) of the Criminal Procedure Code. He referred the court to the plea of the appellant at page 5 lines 8-10 of the record of appeal. He laid emphasis on the sentence “each of the accused pleads not guilty” and submitted that it was clear that the accused persons including the appellant were asked to plead to count one of the charge and that each pleaded not guilty to the charge, lie said that the word “each” clearly showed that individual plea was taken as opposed to a joint plea as contended by the learned appellant’s counsel.
It was further submitted that the trial of the appellant was right in law and even if he did not plead at all he trial court would have been right in the circumstance to try and convict him accordingly by virtue of sections 188 and 189 of the Criminal Procedure Code. He finally submitted that the trial was not a nullity and referred us to the case at Onucha Anya & ors. v. The State (1965) NMLR 62 at 65 and Atanda v. The State 14 WACA 171. We were urged to dismiss the appeal and affirm the decision of the courts below.
At page five of the record of appeal Mr. A. I. Adamu. State Counsel was recorded as appearing for the estate while Mr. B.K. Ba’aba was recorded as appearing for all the accused persons including the appellant. The note made by the learned trial Judge of the proceedings at page 5 went thus:
“Each accused speaks Hausa language.
Musa Mustapha, Clerk of Court, affirmed to interpret the proceedings truthfully and correctly from English Language to Hausa language and vice versa.
Court – The charge as to count I was read out and interpreted and explained to each of the accused Nos. 1, 2, 3, 4 and 5.
Plea – Each of these accused pleads not guilty to count 1.”
(Italics mine for emphasis)
Section 187 of the Criminal Procedure Code Law 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 is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.”
In this case, the appellant was provided with an interpreter who swore to interpret to the accused persons correctly and truthfully from English language to Hausa language and vice versa. The interpreter read out and explained the charge to each accused person and each of them pleaded not guilty to the charge. The emphasis here is on the word “each”. The record of proceedings before the trial court showed that count one was read separately to each accused and each of them pleaded separately to the charge.
This case is similar to the case of Adamu v. The State (1986) 3 NWLR (Pt.32) 865 where the record of the trial court showed that the offence charged was read and explained to each accused and each accused was asked in Hausa if he was guilty or not guilty. The plea recorded was “Not guilty to each count.”
On appeal, it was contended before the Court of Appeal that the pleas of the accused persons had been taken separately as provided by Sections 187(1) and 188 of the Criminal Procedure Code. The Court of Appeal per Agbaje J.C.A., as he then was, held that having regard to what went on before the trial Judge wrote. “Not guilty to each count”, the irresistible inference was that the learned trial Judge recorded the plea of each accused person as the plea taken separately from each of the accused persons and that there was substantial compliance with Sections 187(1) and 188 of the Criminal Procedure Code. The pleas in the present appeal were more explicit than in Adamu’s case in complying with Sections 187(1) and 188 of the Criminal Procedure Code. In this appeal, the record showed that “each of these accused pleaded not guilty to count 1.” Whereas in the former the record showed “Not guilty to each count”.
It is trite that where in a criminal trial the charge contains more than one count, each count must be read separately to the accused and he must plead separately to them. The record of proceedings must show that the counts were read separately to the accused and that he pleaded separately to them.
If it is a joint charge containing more than one count, each count must be read out and explained to each accused separately and he pleads separately to each count and these must be so recorded. See Duvall v. Commissioner of Police (1962) 2 All N.L.R. (Pt.1) 116 at 117.
The trial court not only complied with Sections 187(1) and 188 of the Criminal Procedure Code but also complied with Section 33(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979.
It is also important that there should be no ambiguity in the plea and care should be taken while reading the charge and before the plea is recorded that the accused clearly understood the meaning of the charge in all its details and essentials as well as the effect of his plea. For the appellant to contend that there was any irregularity in the taking of his plea is to reduce the mandatory provisions of Sections 187(1) and 188 of the Criminal Procedure Code to absurdity. There was in my view substantial compliance with the law.
In the result, the appeal lacks merit. It is hereby dismissed. The decisions of the courts below are affirmed.
M. L. UWAIS, J.S.C: I have had the opportunity of reading in draft the judgment read by my learned brother Ogwuegbu. J.S.C. I entirely agree that the appeal lacks merit.
By sections 187 and 188 of the Criminal Procedure Code, Cap.30 0f the Laws of Northern Nigeria 1963 applicable-
“187(1) When the High Court is ready to commence the trial, the accused shall I 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.
- If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilty on behalf of the accused, the court shall proceed to hear the case.”
Nowhere in these provisions is it stated that the exact words of the accused pleading guilty or otherwise should be recorded. This is in contrast with section 218 of the Criminal Procedure Act, Cap.80 of the Laws of the Federation of Nigeria, 1990 which provides, in the case of a plea of guilty in a criminal trial, as follows:
“218. If the accused pleads guilty to any offence with which he is charged the court shall record his plea as nearly as possible in the words used by him and if satisfied that he intended to admit the trust (truth) of all the essentials of the offence of which he has pleaded guilty, the court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary’”
The decision in Sam v. The State, (1991) 2 NWLR (Pt.176) 699 at p.706 has been relied upon by the appellant to submit that his trial was a nullity. This cannot he so because the decision in that case was based on the provisions of section 215 of the Criminal Procedure Act, Cap.80 and not even section 218 thereof.
The judgment reads –
“Section 215 of the Criminal Procedure Act states that after the charge or information has been read over and explained to the accused person to the satisfaction of the court by the registrar or other officer of the court, the accused person shall be called upon to plead instantly thereto. The accused shall plead in person and such plea should be recorded as nearly as possible in the words of the accused person.
The language of section 215 of the Criminal Procedure Act is clear and unambiguous. It makes no provision for group plea. I think it is fundamental that where two or more persons are charged together, the plea of each of the accused persons must be separately taken and separately recorded.”
But, with respect to the Court of Appeal, section 215 of the Criminal Procedure Act makes no such provisions. The section reads –
“215. The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see 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 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.”
The appellant also relied on the decision in Adamu v. The State, (1986) 3 NWLR (Pt.32) 865 at p.879 where Macaulay, J.C.A. made the following observation –
“Clearly, in the records, as submitted by Mr. Saleh, the provisions of section 187(1) of the Criminal Procedure Code were not complied with. Making allowance for, perhaps the oversight that when the learned trial Judge recorded that the “offence charged read and explained again to each person and each is asked in Hausa if he is guilty or not guilty,” it may be claimed, with some justification, that the accused persons were not misled about the particulars of the offences alleged against them, is there any legal justification by the court for not recording the separate plea/pleas on the separate counts of each accused, as required by law In my view, the earlier presumption of not being misled by itself, does not absolve from blame the breach of fundamental legal requirement of the Court of Its constitutional responsibility of recording the plea of each accused persons. (sic) with regard to the separate counts against each, separately, even though they were all represented by counsel. See the dictum in R. v. Pepple, 12 WACA 68……… This court has also held that such a trial will be a nullity in terms of the provisions of section 380(h) of the Criminal Procedure Code, despite the built in amnesty provided by section 382 of the law.” (Italics mine)
Again, with respect, I do not think that the foregoing observation is correct.
For neither the Criminal Procedure Code nor the 1979 Constitution has made any provision which makes it mandatory for a trial judge to record separate plea for separate accused where more than one person are being tried under the provisions of Criminal Procedure Code, Cap.30. The provisions of section 380 subsection (h) of the Criminal Procedure Code which read –
“380. If any court or justice of the peace not being empowered by law in this behalf, does any of the following things, namely –
………………………………………………..
(h) tries an offender ……………………..
such proceedings shall be void.”
could not have applied to Adamu’s case since there is no provision in either the Criminal Procedure Code or the Constitution which denied the trial Judge the right to record a common plea for all the accused persons.
However, as a matter of practice and clarity I am of the view that it is desirable for separate plea to be recorded in respect of each accused in a joint trial. This, as far as the Criminal Procedure Code is concerned, is not and cannot be a mandatory provision. Failure to comply with it will not, therefore, vitiate any trial unless of course, it can be established by the accused that he has suffered a miscarriage of justice by reason of his plea not being recorded separately or in his own words.
It is for these and the reasons contained in the judgment of my learned brother Ogwuegbu, J.S.C. that I too will dismiss this appeal.
Other Citation: (1992) LCN/2570(SC)
