3PLR – BAGOGO GODWIN V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BAGOGO GODWIN

V.

THE STATE

FEDERAL COURT OF APPEAL, KADUNA

14TH APRIL, 1978

FCA/K/79/77

3PLR/1978/20 (CA)

 

 

OTHER CITATIONS

[1978] 1 NCAR 204

 

BEFORE THEIR LORDSHIPS        

NASIR, JSC

UWAIS, JSC

ADEMOLA, JJ.C.A.

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Failure to record plea of accused – Effect on proceedings – Whether amounts to mere technicality – Position of law on technicalities – Legal effect

PRACTICE AND PROCEDURE:- Plea taking in criminal proceedings – Duty of court thereto – Legal justification – Effect of failure there

INTERPRATION OF STATUTE:- section 187(1) and (2) of the Criminal Procedure Code, C.P .C

 CHILDREN AND WOMEN LAW: Women and Security/Murder – Wife-killing – Husband who killed his wife through multiple stab wounds on her body, liver, intestine and lung – Women and Justice Administration – Effect of failure to properly take an accused person plea on his conviction for murder

MAIN JUDGMENT

ADENEKAN ADEMOLA J.C.A.:

The appellant was convicted in the High Court of Plateau State sitting at Jos for an offence of culpable homicide of his wife under section 221 of the Penal Code. This was after a committal by a Magistrate Court. At the trial in the High Court in Jos at its sitting on 6/9/76 after the interpreter has been sworn, the following is the record of the High Court made on that day.

“Charge read and explained to the accused:

Plea; she was my wife. I agree that I committed the offence. We have 2 children I asked them to bring the children for me to see I was told, that they have been killed.”

 

The Magistrate Court had earlier made a committal order on 2/7/76 in the following terms:

(a)     I, D.S.T.C. Pessu, Senior Magistrate II hereby charge you Bagoro Godwin (m) as follows:

(b)     That you Bagoro Godwin on or about the 29th day of November 1975 at Lur Village near Kabwir within the Panshin Magisterial District, you did commit Culpable Homicide punishable with death in that you caused the death of Nakom Bagoro

(f)      by doing an act to wit you used a knife to inflict on the said Nakom Bagogo multiple stab wounds on her body, liver, intestine and lung with the intention of causing her death and thereby committed an offence punishable under section 221 of the Penal Code and triable by the High Court.

(c)     And I hereby direct that you be tried by the High Court.

 

There was no information filed in the High Court Jos when the appellant was arraigned before it. Therefore we must assume that the charge the appellant faced and pleaded to before the High Court in Jos was what the Magistrate committed him for in his order.

 

After the “plea” of the appellant noted above, he was tried and convicted and he has appealed here and was duly assigned with a counsel. We asked counsel on both sides in this appeal whether what was recorded as plea of the appellant was sufficient to satisfy the provisions of section 187(1) and (2) of the C.P .C.

 

Mr. Aluko-Olokun counsel for appellant submitted that what was recorded on behalf of the appellant in the lower court amounted to a plea of Guilty by the court but the court was enjoined by section 187(2) of the C.P .C. to record a plea of Not Guilty in favour of the appellant. But the failure of the court to do so was an irregularity with Sections 288 and 382 of the C.P.C could cure.

 

Before we go further, it would be appropriate to reproduce the sections the counsel on both sides have relied upon as curable of any defect, if any, in this case. Section 288 states as follows:-

“A court exercising appellate jurisdiction shall not in the exercise of such jurisdiction interfere with the finding or sentence or other order of the lower court on the ground only that evidence has been wrongly admitted or that there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice has been occasioned by such admission or irregularity.”

 

And section 382 is as follows:-

“subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal Or review on account of any error, omission or irregularity in the complaint, summons warrant, charge public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal Procedure Code unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

 

Mr. Sha in his own submission said that the Judge acted as if he has recorded a plea of not guilty. He submitted that a plea is an order under S. 288 of the C.P.C. and the court in this case has acted under S. 188 of the C.P .C. We do not think Section 288 or 382 of the C.P .C. can help in this case to cure a defect of not recording the Plea of the appellant. The defect in our view is very fundamental to the whole trial and transcends the boundary of mere technicality.

 

In countries with a common law tradition for it is criminal procedure, the failure to record a plea makes a purported trial to be nullity and a court of appeal directs a re-trial; see R. v. Baker 7 C.A.R. p. 217,. R. v. Ingleson ii Cr. App. R. p. 21; R. v. Llyod 17 Cr. App. R. p. 184; R. v. Breman 28 Cr. Appeal Rep. All these cases were applied in Salami Olonje and 57 others v Inspector-General of Police 1955 – 56 W.R.N.L.R. p. 1 to be referred to later in this judgment.

 

The position is not different under the Criminal Procedure Act in Nigeria where the failure to record a plea or where a wrong plea has been recorded, the courts have always directed a re-trial, see R. v. Ben Ele 1 W.A.C.A. p.24,.R. v. Richard Pepple and another 12 W.A.C.A. p. 441. Hedges J., as he then was, has dealt masterly with the situation in the Salami Olonje’s case as this excerpt from his judgment shows:-

“All the books which I have been able to consult emphasise the importance which is attached to the taking and recording of plea. So far as trial on indictment (or information as it is called in this country) is concerned, there is clear authority for saying that there can be no trial unless a plea is recorded. It was laid down in R. v. Duffy, 1 St. Tr. (N.S.) 95, at page 199, that arraignment is not complete till the prisoner has pleaded. The essential nature of this requirement is illustrated in the rules as to standing mute. If an accused person is ‘found to be mute of malice it is not permissible to proceed with the trial without recording a plea. Instead the Court is permitted to enter a plea of not guilty. It may well be that the reason for this is that no exception should be made to the rule that a plea must be recorded. The importance of plea is also emphasised in section 217 of the Criminal Procedure Ordinance which, following the English Law, provides that every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial.

It remains only for me to consider whether the requirements of the law are less strict in the case of a summary trial by a Magistrate of an indictable offence, section 304 (2) of the Criminal Procedure Ordinance provides inter alia that if an accused person consents to be tried summarily, the Magistrate shall forthwith ask him the following question:-

‘Do you plead guilty or not guilty?’

That provision is mandatory, and it is difficult to see why the significance of the plea should be less in the Magistrate’s’ Court than it is in a trial upon information in the High Court.

In the case before me it is not disputed that no plea was recorded. In my view that is a fatal error, however unfortunate the consequences may be. The proceedings are a nullity. The conviction and sentence in each case are set aside on the ground that they are null and void.” (The emphasis in this passage is ours.)

 

The defunct Western State Court of Appeal in Sanmado v. The State 1967 N.M.L.R. 314 at 311 had this to say in a case where an accused person in murder trial had pleaded before a judge and another judge who later became seized of the case failed to take the plea of the accused person now arraigned before him:

“Once the constitution of the court which received the plea of an accused has changed, the new court trying him must revieww a fresh plea after being satisfied that the charge was read over and explained to him.

The argument that in a murder trial whether a plea is taken or not is superfluous since if the accused pleads guilty to the charge, the trial must still go the whole length as if he had pleaded not guilty, cannot stand, because in that case, there would have been a plea in compliance with the statutory provision of section 215 of the Criminal Procedure Ordinance.

We hold that non compliance with the requirement of the mandatory provision of section 215 of the Criminal Procedure Ordinance by the learned trial Judge is fatal and renders the trial a nullity ab initio.”

 

What is the position under the C.P .C. of the state of Northern Nigeria?

 

There is nothing in the Indian Criminal Procedure Code that is like S. 187(2) of our Criminal Procedure Code which read states thus:.

“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.” (The emphasis here is also ours.)

 

J.R. Jones in his admirable and useful note to this subsection at page 117 of his book ‘on Criminal Procedure Code of Northern States of Nigeria states thus:

See notes to S. 161. In the case of a charge of culpable homicide punishable with death the record should show only the plea of “Not guilty”, as this subsection states, and not accused’s actual words, (c.f. the wording of S. 157) which are inadmissible as evidence because no warning as provided in either S. 235 or 236 has been given.”

 

He cited no case for his statement and it is doubtful whether there is a case in this country so far to cite.

 

In India, the position under 271 of their Criminal Procedure Code (which is not unlike part of our section 187(2) is discussed at p. 451 of Sarkar on Criminal Procedure 3rd Edition where the learned author stated thus:.

“It is the settled practice not to accept a plea of guilty without examining the accused and finding out whether he really understands what he was pleading to (Kassim, 26 Cr. L.J. 177; Keshab, 18 Cr. L.J. 742; Vishwanath, 46 Cr. L.J. 357; Nga Ywa, 12 R. 616; Abdul Kader, A 1947, B. 345). If proper safeguards are taken, a plea of guilty to a capital charge may be accepted. Such safeguards include representation by counsel who must be in position to answer the question of the court (Abdul Kader. sup.). A plea of guilty may be recorded at a later stage of the trial (Shyama, A 1934,p. 330).

 

A confession of guilt does not become a plea of guilty unless and until it is accepted. If not accepted the confession ought not to be recorded. In such cases the practice is to treat it as a plea of not guilty (Abdul Kader, sup., see Md Yusuf, 58 C. 1214, 1219) and to proceed with the trial (Abdu( Kader, sup.; Hasaruddin.A 1928, C. 775: Surjan . A 1914, A. 558: Chinna. 2:1 M. 757: Keshao. A 1917, O. 362).” (The emphasis is our.)

 

The legislative history of the Penal and the Criminal Procedure Codes in this country shows that the drafters had the experience of both the Indian and Sudanese Code in mind. The drafting of S. 187(2) of the Criminal Procedure Code in its present form must be regarded therefore as a departure from S. 277 of the Indian Criminal Procedure Code. The section incorporates in our view what is generally) done as a matter of practice in that country and what is a matter of law in the existing Criminal Procedure Act operating in other parts of Nigeria. )

 

We have therefore come to the conclusion that section 187(2) of the C.P.C. is mandatory provision which must be complied with and the failure to record a Plea of Not Guilty on behalf of the appellant in the proceedings before the High Court is fatal. We are also of the view that the appellant himself must be put in the picture by the court and this can only be done if the legal provision has been explained to him. The fact that there is no record of a plea of “not guilty” is a pointer that the appellant was not informed of his right. We do not think that the judge could secretly comply with this subsection. He must inform the appellant. Failure ‘to do this is not mere irregularity but fundamental defect. The appellant might well be presuming that his statement after the charge formed the basis of his trial. We also believe that an impartial on-looker sitting in court would presume that the statement made by the appellant after the charge formed part of the evidence against the appellant or is at least part of record of the proceedings, as in fact it is. In our opinion section 187(2) creates right bestowed upon the appellant and failure to comply with its provision is fundamental. We also would like to observe that nothing that an accused person may say about the charge read to him other than his plea should be recorded when a court is dealing with a case of culpable homicide under this section.

 

It could not be said that what has been recorded here on behalf of the appellant could have guaranteed him a fair trial of the offence on which he was arraigned and convicted of. The statement was meant to be an admission of the offence charged of his killing his wife but he (appellant) went on to say something about the children being killed. In our view it is difficult for a jury or a Judge to proceed to trying a case with a statement like this as a background to the proceedings at such a trial without a bias against the accused person. There can be only one word to describe such a trial – a charade.

 

The appeal before us was argued in extenso with counsel covering all the grounds filed on behalf of the appellant and learned state counsel duly made a reply. We refrain from making our views known on them because of the order we are making in this appeal. The net result of all these is that we allow this appeal and quash the sentence of death passed on the appellant by the High Court of Plateau State sitting at Jos. It is hereby ordered that the appellant be retried in the High Court of the State before another Judge.

 

 

UWAIS J.C.A.: DISSENTING

I have read the judgment just delivered by my learned brother Ademola J.C.A. and with respect and humility I am for the following reasons unable to agree with the conclusion reached.

 

A trial in the High Court commences when the accused appears or he is brought before the High Court and the charge is read out to him and he is asked whether he is guilty or not (see section 187 (1) of the C.P.C.). If the charge is punishable with death and the accused pleaded guilty, it is mandatory on the trial judge to enter plea of not guilty on behalf of the accused see S. 187(2) (C.P .C,) and then proceed with the trial in accordance with the rest of the procedure laid down in Chapter XVIII of the Criminal Procedure Code.

 

In the appeal before us the charge, was that of culpable homicide punishable with death contrary to Section 221 of the Penal Code. When the charge was read and explained to the appellant he pleaded as follows:-

“She was my wife. I agree that I committed the offence. We have two children. I asked them to bring the children for me to see. I was told that they have been killed.” (The emphasis is mine).

 

The pith of the appellant’s plea is that he [pleads] guilty to the charge. If the trial judge were acting under the first limb of S.187 (2) of the C.P .C. he would have used his discretion and convicted the appellant accordingly. However there is the mandatory provision of the second limb of the subsection which enjoined the learned trial judge to enter a plea of not guilty and proceed with the trial.

 

Now, although the learned trial judge did not enter the plea of not guilty on behalf of the appellant he did not convict him as provided under the first limb of the subsection. Instead he proceeded with the trial by hearing all the prosecution witnesses who were cross-examined by the counsel for the appellant. At the end of the case for the prosecution, the appellant gave evidence on his own behalf and of his own volition changed his mind about the witnesses he had earlier wanted to call his defence. From the foregoing, it is very clear that the learned trial judge had meant to comply with the second limb of subsection (2) of section 187 of the C.P.C. but omitted to write down in the record of proceeding that he entered a plea of not guilty on behalf of the appellant. The question therefore are: What is the effect of the omission? Was the appellant prejudiced by the omission? Does the omission vitiate the proceedings or not? Both the learned counsel for the appellant and the respondent submitted that the proceedings were not vitiated and I am in full agreement.

 

Undoubtedly omission by the learned trial judge to enter a plea of not guilty gave rise to an irregularity in the proceedings. There are provision under Chapter XXXII of the Criminal Procedure Code which deal with “Irregular Proceedings”. Section 380 of the C.P.C: deals with irregularities that vitiate proceedings. The omission committed by the learned trial Judge does not fall under the section. Section 379 of the C.P .C. lists out irregularities which do not vitiate proceedings and I venture to say that in view of the provisions of SS.381 and 382 of the C.P.C. the list is not exhaustive. Sections 381 and 382 as relevant provide:

“381 (1) No finding or sentence pronounced or passed shall be deemed invalid merely on ground that no charge was framed, unless, in the opinion of an appeal court or reviewing authority a failure of justice has in fact been occasioned thereby.

  1. Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission or irregularity in the complaint, summons, warrant, charge, public summons, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Criminal Procedure Code unless the appeal court or reviewing authority thinks that a failure of justice has in fact been occasioned by such reason, omission or irregularity.” (The emphasis is mine).

 

If there are occasions under the C.P.C when conviction without a charge could be upheld as in S. 381 (See Adagba v Commissioner of Police, 1965 N.M.L.R. 476) or conviction without giving reasons (see S. 268(1) C.P.C. and Kurma v. Commissioner of Police 1969 N.M.L.R. 55) could be upheld under S. 382 then a fortiori the present case where the omission was to enter a plea of not guilty.

 

Section 537 of the Indian Code of Criminal Procedure is substantially the same as section 382 of the Criminal Procedure Code. In Kapoor Chand A.I.R. 1933A. 264, a full bench of the Allahabad High Court stated:

“The sole criterion given by S. 537 is whether the accused person has been prejudiced or not. The object of the procedure is to enable the court to do justice, but if in spite of even total disregard of the rules of procedure justice has been done, there would exist no necessity for setting aside the final order which is Just and correct simply because the procedure adopted was wrong.”

 

The Privy Council also had the opportunity to comment on the provisions of S.537 in Abdul Rahaman A.I.R. 1927P.C.44 where it said:-

“To sum up, in the view which their Lordships take of the several sections of the Code of Criminal Procedure, the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction, which in their Lordships view may be supported by the curative provisions of SS. 535 and 537.”

 

I think the intention of the Legislature of Northern Nigeria in replacing the Criminal Procedure Act, (Cap. 43) with the Criminal Procedure Code was to do away with the technicalities of English Criminal Procedure. Hence under the C.P.C there could be conviction in the Magistrate’s and Area Courts without a charge, there is no classification of offences into felony, misdemeanour and simple offence and many more such examples. As observed by Ademola, C.J.N. in Obaji v The State 1965 N.M.L.R. 417 at 420 “…the duty of the Courts in Nigeria is to interpret the Criminal Code free from interpolation and refrain from propounding the Common Law of England… ” I respectfully concur and will add that the principle so enunciated also applies to the interpretation of the Criminal Procedure Code.

 

The stand of the Legislature on technicalities is further illustrated by the provision of S.288 of the C.P.C. which says

“A Court exercising appellate jurisdiction shall not in the exercise of such jurisdiction interfere with the finding or sentence or other order of the lower court on the ground only that … there has been a technical irregularity in procedure, unless it is satisfied that a failure of justice has been occasioned by such admission or irregularity.” (The emphasis is mine).

 

I am therefore of the view that since the learned trial judge’s intention is manifestly to continue with the trial despite the plea of guilty made by the appellant and he had, apart from the omission to enter a plea of not guilty, substantially complied with the procedure laid down by the C.P .C. for conducting a trial, the appellant was not prejudiced and there has been no miscarriage of justice. I am of the opinion that the appeal should be considered on its merits.

 

On the question of what plea is to be recorded where an accused charged with culpable homicide punishable with death on being arraigned made plea of guilty. I am of the view that his exact words which amount to the plea of guilty should be recorded first before the trial court enters on the record of proceedings a plea of not guilty in accordance with S, 187(2) of the C.P .C. This is necessary in order that the record of proceedings may be accurate as well as complete and an Appeal Court to which the case may later go will be put in the proper picture of what transpired in the trial court.

 

In Abdul Kader v, Emperor A/R 1947 Bom. 348 at 354 Sen. observed as follows:

“There are however cases in which the court will not act on such plea in any case, i.e … irrespective of the question whether the accused has fully understood the charge and the implications of the plea, and hold it desirable to hold a trial by jury exercising the discretion given to it by S.271 (2) in favour of the accused. Such cases will include murder cases: 8 Bom. LR. 240 and 19 Bom. LR. 356, In such cases it does not appear necessary that the Court should be strictly satisfied, even if some doubt appears, that the accused has taken the plea of guilty with full understanding and responsibility; and the mere recording by the Court of the words used by the accused as his plea should not be opened to objection. In the present, case I have no doubt (leaving aside for the moment the argument based on absence of his counsel) that the learned Judge was right in recording the plea of guilty and in not convicting him on his pleas”

 

It was also observed on p. 359 thereof by Jajadhyaksa J. that:

The conclusion we reach from what we have been saying above is that the decision of the learned trial judge finding the appellant guilty is unsatisfactory and cannot be allowed to stand in the result the appellant’s appeal is allowed his conviction and sentence in both counts are hereby set aside and in their place an order of acquittal is entered.

 

 

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