3PLR – ADEDEJI ADESANYA V. FEDERAL REPUBLIC OF NIGERIA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADEDEJI ADESANYA

V.

FEDERAL REPUBLIC OF NIGERIA

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 27TH DAY OF APRIL, 2012

CA/L/220/2010

3PLR/2012/3 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, JCA

IBRAHIM MOHAMMED MUSA SAULAWA, JCA

MOHAMMED ABMI-USI DANJUMA, JCA

 

BETWEEN

ADEDEJI ADESANYA – Appellants

 

AND

FEDERAL REPUBLIC OF NIGERIA – Respondents

 

REPRESENTATION

Mrs. Ngozi Ekwensi – For Appellant

AND

Mr. Chuka Francis Egbu – For Respondent

 

ORIGINATING STATE

Lagos: Federal High Court (Okon Abang J- Presiding)

 

CONNECTED AREAS OF PRACTICE

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL– factors appellate court must satisfy itself of in other to justify an order of retrial- whether a court can draw inferences from the facts of the case and the record to determine an issue addressed or raised at the trial, even if it is not specifically raised as an issue by the parties on appeal

CRIMINAL LAW– requirements that must be satisfied upon arraignment of an accused person- determination of whether an arraignment becomes invalid where the court did not record that the accused understood the language and the charge- when a person can be held liable and punished or deprived of his liberty

INTERPRETATION OF SECTIONS– section 218 of the Criminal Procedure Act- section 215 of the Criminal Procedure Law – section 36 (6) (a) of the 1999 Constitution

—————————–

 

1. PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – AN ORDER OF RETRIAL: Circumstance where an order of retrial would be made

”In order to justify an order of retrial, an appellate court must satisfy itself of the existence of a number of factors, depending on the peculiar facts and circumstances of each case. The factors include: (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that the Appellate court is unable to say that there has been a miscarriage of justice (b) that besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant (c) that there are no special circumstances that would render it oppressive to put the appellant on trial a second time (d) that the offence or offences with which the appellant is 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 retrial would occasion a greater miscarriage of justice than to grant it. See Abodunde v. Queen (1959) SCNLR 162; Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333; Attah v. The State (1993) 7 NWLR (Pt. 305) 257 at 289; Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 at 394-395.” Per OGUNWUMIJU, J.C.A. (Pp. 28-29, paras. A-A)

 

2. CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT: Factors which must be present before an accused can be said to have been properly arraigned in court

”In Ajile v. the State (1999) 9 NWLR Pt. 619 Pg.503 at 510 this court per Roland JCA held thus: “By virtue of section 215 of the criminal procedure Law Ondo State, 1978 and section 33 (6) (a) of the 1979 Constitution, upon an arraignment of an accused person for his trial the following requirements must be satisfied failing which any subsequent trial and conviction of him will be rendered a nullity. The requirements are: a) The accused must be present in court unfettered unless there is a compelling reason to the contrary. b) The charge must be read over to the accused in the language he understands. c) The charge should be explained to the accused to the satisfaction of the court. d) In the course of the explanation technical language must be avoided. e) After requirements (a) to (d) above have been satisfied the accused will then be called upon to plead instantly to the charge. All the above requirements must co-exist and must be satisfied as they are mandatory” Per OGUNWUMIJU, J.C.A. (Pp. 21-22, paras. G-D)

 

3. CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT: Whether the determination of whether an arraignment is invalid depends on the circumstances of the case

”Thus, to determine whether an arraignment becomes invalid where the court did not record that the accused understood the language and the charge, it would depend on the circumstances of each case.” Per OGUNWUMIJU, J.C.A. (P. 21, paras. A-B)

 

4. CRIMINAL LAW AND PROCEDURE – CHARGE: Whether an accused person must understand the charge against him before he takes his plea

”There is no doubt that the principle is elementary and firmly established in our legal system that an accused person must fully understand the charge against him before he is required to take his plea and it is for this reason that the law requires that the charge be read and explained to the accused person before he is called upon to take his plea.” Per OGUNWUMIJU, J.C.A. (P. 18, paras. B-C)

 

5. PRACTICE AND PROCEDURE – COURT – COURT RECORD: Whether a court can draw inferences from the facts of the case and the record to determine an issue addressed

”In law, a court of trial is entitled to draw inferences from the facts of the case and the record to determine an issue addressed or raised at the trial, even if it is not specifically raised as an issue by the parties on appeal. See GBADAMOSI VS. DAIRO (2007) 145 LRCN 508. In DAIRO (Supra) page 508 at 523, par. EE per TOBI JSC, it was stated thus:- An Appellate Court may draw conclusion or make inference from the record before it. Conclusion or inference borne out of/from the record cannot be branded as fresh point of law. A fresh point of law is a new point of law which was not raised by any of the parties at the trial of the case. A point of law which was raised by the parties at the trial cannot be a fresh point of law.” Per DANJUMA, J.C.A. (Pp. 36-37, paras. F-B)

 

6. CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: The implication of failing to afford an accused the right to fair hearing

”In IKO vs. THE STATE 2004 CAC 73 at 102, it was held that where it cannot be said that the offence has been proved beyond reasonable doubt, accused must be acquitted. Furthermore, it is obvious from the record of trial that in all the series of adjournments in the purported trial, the prosecution was either absent or the accused was absent, howbeit on the date the said trial commenced, the counsel of the accused person’s choice was yet to appear when the charge was read to him in spite of his information that his counsel was on his way. That was a clear case of implied request for adjournment. The non consideration of that implied request was clearly a breach and violation of the Appellant’s right to fair hearing in that his right to be represented by counsel was denied. see GOKPA V. I.G.P. (1962) 1 ALL NLR 423; WAZIRI V. THE STATE (1997) 3 NWLR Pt.496 Pg.689 at 723; OYAKHERE V. THE STATE (2005) 15 NWLR pt.947 Pg.159 at 175, OGBEH V. FRN (2002) 10 NSC QR Pg. 496 at 509; GOKPA V. I. G. (1962) 1 All NLR 423; UZODINMA V. C.O.P. (1983) 3 NCLR 25; UDOFIA V. STATE (1988) 7 SC Pt.11 pg.59 at 68. Where there is a breach of the right of fair hearing as in this case, a fundamental right to representation by counsel, the trial, and conviction is automatically a nullity as it is void. Such proceedings is a violation of the constitutional guarantee for the breach; and such a decision arrived at or any proceedings taken pursuit thereto in that circumstance is liable to be set aside. See GBADAMOSI VS. DAIRO (2007) VOL. 145 LRCN 508 at 523 PAR. 00 PER NIKI TOBI (JSC as he then was).” Per DANJUMA, J.C.A. (Pp. 32-34, paras. G-A)

 

7. CRIMINAL LAW AND PROCEDURE – SECTION 215 AND 218 OF THE CRIMINAL PROCEDURE ACT: The relevance of section 215 and section 218 of the Criminal Procedure Act

”..the compliance with section 215 is also intertwined with compliance with section 218 of the Criminal Procedure Act. The relevance of compliance with section 218 is that the accused person must indicate to the judge that he understood the implication of the charge. In this case, there is nothing on the record to show this. The Appellant pleaded guilty to a charge couched in elaborate technical language which did not disclose the sanction that he would face life imprisonment. He was appearing in court for the first time. There must be indication that indeed by the provisions of section 218 of the Criminal Procedure Act, “…he intended to admit the thrust of all the essentials of the offence of which he has pleaded guilty…” I cannot put the matter better than my learned sister Monica Dongban-Mensem JCA in Agagaraga v. FRN (2007) 2 NWLR Pt.1019 pg.586 at 602 where her ladyship stated inter alia in similar circumstances. “By the provisions of section 218 of the Criminal Procedure Act, a trial court has a duty to satisfy itself that an accused person intended to admit the thrust of all essentials of the offence of which he has pleaded guilty. In other words, the trial court ought to satisfy itself that the accused person indeed understood what he was said to have done and the implication of same.” Per OGUNWUMIJU, J.C.A. (Pp. 24-25, paras. B-A)

 

8. CRIMINAL LAW AND PROCEDURE – SECTION 215 OF THE CRIMINAL PROCEDURE LAW: The implication of failure to comply with the provisions of section 215 of the Criminal Procedure Law

”The requirement of the statement of the prosecution’s case against the accused is not mere cosmetics or meant to be perfunctory. The effect of these acts of non compliance by the trial court is that the trial is rendered a nullity. In the words of Uwais CJN in Yahaya v. The state (2002) 3 NWLR pt. 754 pg. 289 at 303 on the effect of this non compliance: “Once the provisions of section 215 of the Criminal Procedure Law and these of section 36 (6) (a) of the 1999 Constitution are not followed in a criminal trial, the trial is rendered null and void ab initio. All the other matters that follow thereafter amount to an exercise in futility are of no significance. It is therefore necessary for courts and counsel involved in criminal trials to note that compliance with the provisions is a sine qua non before the commencement of trial of accused persons.” (underlining mine)” Per OGUNWUMIJU, J.C.A. (Pp. 23-24, paras. E-B)

 

9. CRIMINAL LAW AND PROCEDURE – SECTION 33-35 OF THE 1999 CONSTITUTION: The requirement of the law with respect to section 33 – 35, 1999 Constitution.

”The requirement of the law in criminal trial is that no one shall be held liable and punished or deprived of his liberty unless he has been tried and found guilty by a court of law for an act or omission which constituted an offence at the time of the alleged offence. See section 33 – 35, 1999 Constitution.” Per DANJUMA, J.C.A. (P. 32, paras. D-F)

 

MAIN JUDGMENT

HELEN MORONKEJI OGUNWUMIJU J.C.A. (Delivering the Leading Judgment):

 

This is an appeal against the judgment of Honourable Justice Okon Abang of the Federal High Court Lagos delivered on the 7th day of December 2009. The Appellant was sentenced to life imprisonment. Being aggrieved the Appellant has appealed. The facts which led to this appeal are as follows:
The Appellant was charged as follows on a one court charge as follows:

“That you Adedeji Adesanya ‘Male’ Adult, Nigerian, on or about the 30th day of July 2009, at Gbaji, NDLEA checking point along Badagry – Seme Expressway without lawful authority imported 2kg of Indian hemp, a Drug similar to Cocaine, Heroin, LSD, thereby committing an offence contrary to and punishable under section 11 (a) of the NDLEA Act, CAP N30, LFN, 2004.”

 

The case had been called on the 2nd, 5th, 9th and 16th of November 2009 but on all these dates, the Respondent did not produce the Appellant from its custody and apart from 2nd November 2009; the accused was represented by counsel, one Olusegun Akanbi Esq. The Respondent was also not represented on the 2nd November 2009. The Respondent sought for adjournments for the 5th, 9th and 16th November 2009 for sundry reasons. The counsel to the Appellant raised objections with respect to the applications for adjournments for the 5th and 9th of November 2009.

 

On the 1st December 2009, the Appellant was produced in court but was unrepresented. The Appellant told the trial judge that he was still expecting his counsel. The court did not make any comment in respect but granted the respondent’s application to read the charge to the Appellant. It was recorded that the Appellant did not object to the reading of the charge. The charge was read over to the Appellant by court Registrar Mrs. S. O. Ogundele in English Language. The Appellant said he understood the charge and pleaded guilty to same. Consequently, the trial court adjourned the case to the 3rd of December 2009 and subsequently to the 7th December 2009 for the review of the facts of the case.

 

On the 7th December 2009, the Respondent presented the facts of the case, the trial court found the Appellant guilty, convicted and sentenced him to imprisonment for life.

 

From the notice and grounds of appeal, the Appellant’s counsel in the brief settled by Mrs. Ngozi Ekwensi filed on 27th June 2011 identified four issues for determination. They are set out below:

 

(i)      Whether the trial court complied with the mandatory provisions of section 215 of the Criminal Procedure Act, Cap C41, LFN, 2004 and section 36 (6) (a) of the Constitution of Federal Republic of Nigeria, 1999.

 

(ii)     Whether from the peculiar circumstances(s) of this case, the Appellant was given a fair trial in line with section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 by the trial court.

 

(iii)    Whether the trial court complied with the mandatory provision of section 218 of the Criminal Procedure Act C41, LFN, 2004.

 

(iv)    Whether from the entire circumstance of this case, the sentence of life imprisonment imposed on the Appellant was excessive.

 

The Respondent’s counsel Mr. Chuka Francis Egbu in the brief settled by him filed on 6th December 2011 wherein he identified three similar issues for determination set out below:

 

(A)     Whether from the entire circumstances of the instant case the trial court was not right when it convicted and sentenced the Appellant to life imprisonment?

 

(B)     whether it could not be said that the trial court complied with the mandatory provisions of section 215 of the criminal Procedure Act, Cap

 

(c)     whether from the entire circumstances of this case, the Appellant was given a fair hearing by the trial court?

 

It is my humble view that issues 1st, 2nd and 3rd as distilled and argued by the Appellant can be subsumed under one issue and the 4th issue treated as a separate one. I will now re-couch the issues for determination which I hold germane to the consideration of the issues in controversy in this appeal.

 

1. Whether the trial court complied with the provisions of section 215, section 218 of the Criminal Procedure Act and section 35 (6) (a), (b) and (c) of the 1999 Constitution in the arraignment, trial and conviction of the Appellant.

 

2. Whether from the circumstances, the sentence of life imprisonment imposed on the Appellant was not excessive.

 

ISSUE ONE

 

Learned Appellant’s counsel submitted that the trial court did not comply with the mandatory provisions of section 215, and 218 of the Criminal Procedure Act and section 36 (6) (a) and (b) of the 1999 Constitution. In the first instance, counsel argued that the one count charge dated 31st May 2009 was not the one read over to the Appellant. Counsel argued further that the Registrar did not explain the charge to the Appellant contrary to the conjunctive requirements of “reading over the charge” and “explaining same to the satisfaction of the court.” Counsel submitted that without the existence of these 2 requirements the proceedings of the arraignment and trial on 1st February 2009 and 7th December 2009 must be declared a nullity.

 

Counsel argued that the proceedings also violated section 36 (6) (a) of the 1999 Constitution which requires that an accused is entitled to detailed explanation of the nature of the offence.

 

Counsel further submitted that an important aspect of this case is the fact that the charge before the trial court was of a technical nature in which certain scientific analysis of the alleged Indian hemp were conducted and scientific documents completed to buttress the charge while same were not explained in detail to the Appellant. It was seriously contended that, more than in any other case, the Appellant had a constitutional right to be explained to and in detail the nature of the offence and such explanation to the satisfaction of the court. He cited AJILE V. THE STATE (1999) 9 NWLR Pt. 619 Pg. 503 at 510, YAHAYA v. THE STATE (2002) 3 NWLR Pt. 754 Pg. 289 at 303.

 

Learned Appellant’s counsel submitted that the Appellant was misled when a purported charge dated 31st day of May 2009 was read to him by the court’s registrar Mrs. S. O. Ogundele, to which he pleaded guilty. This Court was referred to page 26 of the Record of Appeal. The said charge predates the commission of the alleged offence which was stated to be the 30th day of July 2009. It was seriously contended that notwithstanding the non-objection of the Appellant to the charge being read, a substantial miscarriage of justice was occasioned as the trial judge found him guilty of a charge dated 31st May 2009. Counsel concluded that owing to the non-compliance with the mandatory provisions of Section 215 Criminal Procedure Act and Section 36 (6) (a) of the 1999 Constitution, the Appellant was misled as to the details of and nature of the offence and this occasioned a substantial miscarriage of justice.

 

Counsel submitted that the following authorities should be clearly distinguished from the facts of this case. He cited OGUNYE V. THE STATE (1999) 5 NWLR Pt.604 Pg. 548; Akpan v. the State (2002) 12 NWLR Pt.780 Pg.189; Okewu v. Federal Republic of Nigeria (2005) All FWLR (Pt.254) 858.

 

Appellant’s counsel further submitted that the Appellant was denied the constitutional benefits entrenched in section 36 (6) (b) of the 1999 Constitution which mandates that an accused be given adequate time and facilities to prepare his defence.

 

Counsel argued that there is a rebuttable presumption that the Appellant desired to be represented by counsel at his trial, since he had always been represented before that date of arraignment by counsel. Counsel drew the attention of this court to the fact that the proceeding of 1st December 2009 did not accord with the provisions of section 36 (6) (b) of the 1999 Constitution as the court was obliged to give the Appellant time for his counsel to turn up. Counsel argued that the conviction of the Appellant must be quashed for the failure of the court to ensure that the Appellant who was still expecting his counsel to turn up in court. The court should not have proceeded with the trial in the absence of the Appellant’s counsel. He cited WAZIRI V. THE STATE (1997) 3 NWLR Pt.496 Pg.689 at 723; OYAKHERE V. THE STATE (2005) 15 NWLR pt.947 Pg.159 at 175, OGBEH V. FRN (2002) 10 NSC QR Pg. 496 at 509; GOKPA V. I. G. (1962) 1 All NLR 423; UZODINMA V. C.O.P. (1983) 3 NCLR 25; UDOFIA V. STATE (1988) 7 SC Pt.11 pg. 59 at 68.

 

Learned Appellant’s counsel also argued that the trial court failed to comply with section 218 of the Criminal Procedure Act Cap 41 Laws of Nigeria 2004. Counsel postulated that even though the proceedings of 1st December 2009 on page 26 of the record show that the Appellant was recorded as saying that he understand English Language and there is nothing to show that he understood the charge and its implications or that he intends to admit all the essential elements of the offence to which he had pleaded guilty. He cited AGAGARAGA v. FRN (2007) 2 NWLR pt. 1019 pg.586 at 602.

 

Learned Respondent’s counsel Mr. Chuka Francis Agbu argued in contention that the arraignment of the Appellant on 1st December 2009 met the requirements of a valid and proper arraignment as laid down by section 215 of the Criminal Procedure Act (CPA) and as enunciated by the Supreme Court in IDEMUDIA V. THE STATE (1999) 7 NWLR Pt. 610 Pg. 2O2 at 204.

 

Learned respondent’s counsel argued but conceded that truly the law requires that the charge be read and explained to the accused person before he makes his plea to the charge. Counsel submitted that in spite of that practice, the Supreme Court has stated firmly that where there is no record that indeed the charge was explained to the accused to the satisfaction of the court, that failure will not render the trial a nullity. Counsel cited OGUNYE V. THE STATE (1999) 5 NWLR Pt. 604 Pg. 568; AKPAN v. THE STATE (2002) 12 NWLR Pt.780 Pg.189 at 201-202. He referred particularly to the opinion of Katsina-Alu JSC (as he then was) to the effect that under section 150 (1) of the Evidence Act, when any judicial or official act is done in a manner substantially regular, it is presumed that formal requisites for its validity are complied with and therefore unless the contrary is shown, all acts are presumed to have been rightly and regularly done.

 

Counsel argued that the Appellant understood the English language and the charge but was hoping for a lenient sentence after the trial. The Appellant who was arrested on 30th July 2009, at Gbagi, NDLEA checkpoint along Badagry – Seme expressway had by his own handwriting made a statement in the English language to the Respondent’s Investigation officers.

 

Counsel urged this court to hold that the requirement of section 215 of the CPA was met in that the complaint of the Appellant that he could not understand the details of the offence against him is unfounded. Counsel submitted that the accused person was never misled and no miscarriage of justice is visible. The law is settled that a plea of guilty is valid if made as in this case in a very unambiguous and unequivocal way and same is received by the court not laboring under the misapprehension of what the law is. He cited KAJUBO v. STATE 1988 1 NWLR Pt. 73 Pg. 721 at 731; OKEWU V. FRN (2005) All FWLR Pt.254 Pg. 858 at 872-873.

 

On the argument that the fundamental human rights of the Appellant had been violated, counsel argued that it is only in capital offences that the court is obliged to have accused represented by counsel and that in deciding whether or not to grant an adjournment the court will exercise its discretion based on fact and the circumstances of each case. Counsel argued that the Appellant never requested for an adjournment to enable his counsel to be present in court before taking his plea and that the court is not father Christmas to grant an adjournment not sought for when the court was not under any statutory obligation to provide the Appellant with legal representation. Counsel submitted that the constitutional right of the accused as re-echoed by the provision of section 211 of the Criminal Procedure Act is to the effect that an accused person has two options open to him in the conduct of his defence and he can elect which of the options is best suited for him – to conduct his case in person or to engage a legal practitioner. Counsel cited UDOH V. THE STATE (1988) 3 NWLR Pt. 82 Pg. 316; SHEMFE v. C.O.P. (1962) NNLR Pg.87.

 

There is no doubt that the principle is elementary and firmly established in our legal system that an accused person must fully understand the charge against him before he is required to take his plea and it is for this reason that the law requires that the charge be read and explained to the accused person before he is called upon to take his plea. This is what has led to the practice over time wherein the court will ask an accused person whether he understands English Language (the language of the court) or not, before the charge is read and explained to him in the language he understands. The practice has always been that the court would record what transpired during the arraignment.
Now the following provisions are relevant for the determination of the first leg of this issue. Section 215 of the Criminal Procedure Act provides as follows:
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 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.
Section 218 of the Criminal Procedure provides as follows:

 

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 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.

 

On the 1st December 2009 at page 26 of the Record of Appeal the record state thus:

 

1. N. Ajagu:  (Mrs) for the prosecution

Court:  Accused person where is your counsel?

Accused person: My counsel is not around, I am still expecting him.

1. N. AJAGU (MRS) – I apply for the plea of the accused person to be taken.

Accused person: No objection

Registrar: Accused person understands English Language.

 

The charge read to the accused person by the court’s Registrar Mrs. S. O. Ogundele in English Language. The accused person pleads guilty to the one count charge dated 31st day of May 2009.

 

In the first instance there is no charge dated 31st May 2009 in the record of proceedings, so presumably the correct charge was not the one read to the Appellant. Be that as it may, section 215 makes it mandatory that in reading over the charge to the accused, it must be explained to the said accused to the satisfaction of the court. The question is whether the charge was explained to the Appellant at that point. There is nothing on the record in this case to show that this was done. The judicial authorities are of the view that even where it is not recorded that the charge was read and fully explained to the accused to the satisfaction of the court failure to do so will not render the trial a nullity moreso as section 150 (1) of the old Evidence Act the law presumes that an official or judicial Act is done in a manner substantially regular. See Akpan v. The State (2002) 12 NWLR Pt. 780 pg. 189 at 201-202.

 

Let us look at the way Iguh JSC saw it in Ogunye v. The State (1999) 5 NWLR Pt. 604 Pg. 548 at Pg 567 Para A-B where he said as follows:

 

“In as much as I fully subscribe to the view that it is a good practice and indeed desirable that a trial court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, my understanding of the authorities is not that unless the court so expressly records, as now urged upon us by learned counsel for the 4th and 5th Appellants, such an arraignment automatically becomes invalid and null and void.

 

Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto, I think, however, that the test with regard to this requirement is subjective and not objective.”
Thus, to determine whether an arraignment becomes invalid where the court did not record that the accused understood the language and the charge, it would depend on the circumstances of each case. I do not think an accused represented by counsel during arraignment can turn around to say that he did not understand the charge since it is expected that his counsel who fully understands the legal jargon of the charge and the implication of the section under which he/she has been charged would have fulfilled the duty of explaining the charge to the accused before the client pleads guilty. That is why the subjective test would be used to determine whether or not there has been a valid arraignment under the law. Using this subjective test therefore in the circumstances of this case, I do not think that the presumption under section 150 (1) of the Evidence Act will hold good. This is especially when we consider that the Appellant at that point was unrepresented by counsel and there is nothing on the face of the record to show that the charge was actually “explained” to the Appellant. In Ajile v. the State (1999) 9 NWLR Pt. 619 Pg.503 at 510 this court per Roland JCA held thus:

 

“By virtue of section 215 of the criminal procedure Law Ondo State, 1978 and section 33 (6) (a) of the 1979 Constitution, upon an arraignment of an accused person for his trial the following requirements must be satisfied failing which any subsequent trial and conviction of him will be rendered a nullity. The requirements are:

 

1. a) The accused must be present in court unfettered unless there is a compelling reason to the contrary.

 

1. b) The charge must be read over to the accused in the language he understands.

 

1. c) The charge should be explained to the accused to the satisfaction of the court.

 

1. d) In the course of the explanation technical language must be avoided.

 

1. e) After requirements (a) to (d) above have been satisfied the accused will then be called upon to plead instantly to the charge.

 

All the above requirements must co-exist and must be satisfied as they are mandatory”

 

Let us look further into the procedure adopted during the trial as gleaned from pg. 30 of the record of proceedings. After the Appellant’s counsel withdrew from the case, the following took place:

 

Mrs. F.N. Ajagu: The matter is for review of the fact of this case: In view of the plea of the accused on 1/12/09 the facts are stated on the charge. For further proof, I tender the following:

 

Certificate of Test Analysis

Packing of substance form 11

Matter of substance at 2:35pm

Mrs. F. N. Ajagu for the prosecution

 

Court: Judgment read in the open court at 2:35 p.m. Convict sentenced to life imprisonment.

 

The procedure established in criminal trials found most efficient for the purpose of ensuring that the right of the accused is not violated is as follows.

When an accused pleads guilty to a charge, the court calls upon the prosecution to give a statement of the offence in brief to the court. The prosecution then relates step by step and item by item the case against the accused. In the course of making this statement, various exhibits establishing the guilt of the accused must be tendered. The statement must be interpreted to the accused where he does not speak English language. The statement must be recorded in full by the trial judge. The statement must contain how all the ingredients of the offence can be proved against the accused person. Thereafter, the court is obliged to confirm from the accused person if he agrees with the statement of the offence. If the accused person now disagrees, a plea of not-guilty is entered.

 

If he agrees, then a conviction of guilty would be entered.

 

These steps were not followed by the prosecution and the court in this case. The requirement of the statement of the prosecution’s case against the accused is not mere cosmetics or meant to be perfunctory. The effect of these acts of non compliance by the trial court is that the trial is rendered a nullity. In the words of Uwais CJN in Yahaya v. The state (2002) 3 NWLR pt. 754 pg. 289 at 303 on the effect of this non compliance:

 

“Once the provisions of section 215 of the Criminal Procedure Law and these of section 36 (6) (a) of the 1999 Constitution are not followed in a criminal trial, the trial is rendered null and void abinitio. All the other matters that follow thereafter amount to an exercise in futility are of no significance. It is therefore necessary for courts and counsel involved in criminal trials to note that compliance with the provisions is a sine qua non before the commencement of trial of accused persons.” (underlining mine)

 

Of course, the compliance with section 215 is also intertwined with compliance with section 218 of the Criminal Procedure Act. The relevance of compliance with section 218 is that the accused person must indicate to the judge that he understood the implication of the charge. In this case, there is nothing on the record to show this. The Appellant pleaded guilty to a charge couched in elaborate technical language which did not disclose the sanction that he would face life imprisonment. He was appearing in court for the first time. There must be indication that indeed by the provisions of section 218 of the Criminal Procedure Act, “…he intended to admit the thrust of all the essentials of the offence of which he has pleaded guilty…”

I cannot put the matter better than my learned sister Monica Dongban-Mensem JCA in Agagaraga v. FRN (2007) 2 NWLR Pt.1019 pg.586 at 602 where her ladyship stated inter alia in similar circumstances.

 

“By the provisions of section 218 of the Criminal Procedure Act, a trial court has a duty to satisfy itself that an accused person intended to admit the thrust of all essentials of the offence of which he has pleaded guilty. In other words, the trial court ought to satisfy itself that the accused person indeed understood what he was said to have done and the implication of same. In the instant case, there was nothing in the record of the trial court which showed a compliance with the above vital provision of the law. The record of proceedings showed that the Appellant was not represented by a counsel, nor was he recorded as being a lawyer and was therefore representing himself.”

 

I am of the view that neither section 215 nor section 218 were complied with in the arraignment procedure of the Appellant.

 

What is more serious in my humble view was the flagrant abuse of the fundamental human rights of the Appellant in the violation of section 36 (6) (a), (b) and (c) of the 1999 Constitution.

Section 36 (6) (a), (b) and (c) provide as follows:

 

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

 

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

 

(b)     be given adequate time and facilities for the preparation of his defence;

 

(c)     defend himself in person or by legal practitioners of his own choice.

 

On 5th November 2009, page 9 of the record, the Appellant was represented by Mr. Olusegun Akanbi of counsel. The prosecution led by R. J. Hinmikaiye did not produce him from custody in spite of a pending bail application.

On 9th November 2009, the Appellant was also represented by Mr. Olusegun Akanbi and the prosecution wrote a letter for adjournment but did not produce the Appellant from custody. On 16th of November 2009, the Appellant was also represented by Mr. Olusegun Akanbi of counsel and Mrs. Ajagu the prosecutor did not produce the accused person so his plea could not be taken. On 1st December 2009 when the Appellant was produced at last and waiting for his counsel, his plea was taken as already set out above in this judgment. I do not believe that it was his duty to ask for an adjournment formally from the court being a non lawyer. Having indicated on the record that he had a lawyer of his own choice whom he was waiting for, I think it was the duty of the Court to adjourn the matter forthwith to enable him be adequately represented by counsel.

 

Fair hearing must involve fair trial throughout the whole proceedings. The true test of fair hearing is the impression of a reasonable person who was present at a trial, if from his observation; justice has been done in that case. From the facts of this case, there is nothing to show that the accused waived his right to be represented by a legal practitioner. In fact from the records of proceedings, it can be gathered that the Appellant expected to be represented by a counsel.
In the circumstances of this case, anything short of that course of event was a violation of the constitution. See WAZIRI VS. THE STATE supra AND OYAKHERE VS. THE STATE supra. This court is duty bound to uphold the lofty ideals of fair hearing as enshrined in the constitution. The judicial attitude must always bend towards ensuring that the provisions of the constitution are not violated. I am of the view that having regard to the realities and circumstances of this case, the Criminal Procedure Act and the Constitution have been violated.

 

Learned Respondent’s counsel tried to argue that there has been no miscarriage of justice. However, where there has been breach of the fundamental human rights of an accused or anyone for that matter, it does not lie in the mouth of the party in breach to canvass that there has been no miscarriage of justice. The breach of the fundamental human rights overrides the technicality of the concept of miscarriage of justice since the entrenched principles of fundamental human rights is fundamental to the provisions of the Constitution, Thus a breach of a mandatory constitutional provision by the deprivation of the accused of his right to counsel is not a mere technicality. It touches on the legality of the whole proceedings. It is my view that the irregularity flagrantly and blatantly exhibited in the arraignment of the Appellant has led to a substantial miscarriage of justice in this case. It is my view that this appeal succeeds on issue one. The conviction of the Appellant and the sentence is hereby set aside.

 

The problem now is what order to make in the circumstances of this case. The appellant asked for an order of discharge and acquittal which cannot be granted in these circumstances. I have pondered on whether to make an order for retrial. According to Tabai JSC in Simon Edibo v. State (2007) 13 NWLR pt.1051 Pg.306 @ 327:

 

In order to justify an order of retrial, an appellate court must satisfy itself of the existence of a number of factors, depending on the peculiar facts and circumstances of each case. The factors include:

 

(a)     that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that the Appellate court is unable to say that there has been a miscarriage of justice

 

(b)     that besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant

 

(c)     that there are no special circumstances that would render it oppressive to put the appellant on trial a second time

 

(d)     that the offence or offences with which the appellant is 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 retrial would occasion a greater miscarriage of justice than to grant it.

 

See Abodunde v. Queen (1959) SCNLR 162; Okoduwa v. The State (1988) 2 NWLR (Pt. 76) 333; Attah v. The State (1993) 7 NWLR (Pt. 305) 257 at 289; Erekanure v. The State (1993) 5 NWLR (Pt.294) 385 at 394-395.”

 

I have considered the fact that the Appellant was caught red handed with the Indian hemp and he made a confessional statement to the police contemporaneous with his arrest. There is no doubt that apart from the substantial error in his arraignment and trial, the totality of the evidence available discloses a substantial case against him. In fact, he is not claiming to be innocent of the charges by the brief of his counsel.

 

Even though I am conscious of the high incidents of drug trafficking and the fact that these crimes must be discouraged, I do not think an order of re-trial would meet the justice of this case. The prosecution has been particularly inefficient in the prosecution of this case. Let us recollect that the charge read to him purportedly dated 31st May 2009 was not the charge nor amended charge on record. Thus, the Appellant has been in custody on an uncertain charge. Each section of the NDLEA Act carries different category of sanctions depending on the severity of the offence.

 

Let us look at the circumstances of this case. There are two charges on page 1 and page 11 respectively. In the one on page 1 of the record, he was charged with an offence punishable under section 11 (a) of the NDLEA Act Cap 30. In the one on page 11 of the record, he was charged with an offence punishable under section 11 (d) of the NDLEA Act. According to paragraph 4.3 of the Respondent’s brief, only section 11 (b) carries the penalty of life imprisonment. Therefore by the showing of the prosecution, the Appellant was not even charged with the offence that carries life imprisonment. Also the Appellant is a first offender and was 25 years old at the time he committed the offence. At Pg. 12 of the Respondent’s brief and paragraph 4.32 thereof, the Respondent’s counsel conceded the point that it was not certain whether or not the Appellant was merely in possession of the drug or was trafficking in it. Respondent’s counsel conceded that he was not proved to have been at an entry point into the Country when he was caught with the drugs. Respondent’s counsel urged the court to do justice according to the facts proved in this case.

 

Therefore taking the whole circumstances of this case into consideration, I am of the view that the Appellant has been taught a lesson not to violate the laws of society and that by his incaseration for the past three years he has paid his debt to society. He was 25 years old when he committed the offence and can still be useful to himself and to society, Moreover, a retrial of the charge cannot in my view be of special benefit to the society at large. I will not consider the second issue submitted for determination having resolved the first issue in favour of the Appellant.

In the circumstances, I enter an unconditional discharge for the Appellant.
Appeal Allowed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

 

Having concurred with the reasoning and conclusion thereby reached in the lead judgment, just delivered by the Hon. Justice H. M. Ogunwumiju, J.C.A. I hereby hold that the instant appeal is meritorious. Thus, the appeal is allowed by me. The conviction and sentence of the Appellant by the Federal High Court Lagos Judicial Division, vide the judgment delivered on 07/12/09, are hereby set aside.
Hence, I hereby abide by the consequential unconditional order discharging the Appellant.

M. A. DANJUMA, J.C.A.:

 

I have had the benefit of reading in draft the lead judgment of my lord H. M. OGUNWUMIJU, JCA just delivered and I agree that the appeal should be allowed and the conviction and sentence of the Appellant be quashed.

 

The Appellant was sentenced to life imprisonment for the offence of being in possession of prohibited drugs to wit Indian hemp, a drug similar to Cocaine, Heroin and LSD.

 

From the records of appeal, it is patently clear that that charge upon which the Appellant was purportedly charged was for an offence allegedly committed on the 30th day of July, 2009. The charge is dated 31st May, 2009.

 

It reads as follows:-

 

“That you Adesanya ‘Male’ Adult, Nigerian, on or about the 30th day of July 2009, at Gbaji, NDLEA Checking Point along Badagry – Seme Express Way without authority imported 2kg of Indian Hemp, a drug similar to cocaine, heroin, LSD, thereby committing an offence contrary to and punishable under section 11(a) of the NDLEA Act, Cap N30, LFN, 2004.”

 

The Accused Person was on the 31/5/09, alleged to have committed an offence in prospect ie at a future date that had not coalesced into existence on the date of the charge.

 

Can such a charge be said to be one based on an offence already committed? I do not think so.

 

The law is that no one shall be punished for any offence or crime unless he is charged with the commission of same and has been so found guilty.
Could the Appellant rightly be said to have committed an offence on the 31st May, 2009 as charged when the offence was said to have been committed on 30/7/09

 

The requirement of the law in criminal trial is that no one shall be held liable and punished or deprived of his liberty unless he has been tried and found guilty by a court of law for an act or omission which constituted an offence at the time of the alleged offence. See section 33 – 35, 1999 Constitution.
On the date the charge was laid, no offence existed. No sentence, be it for the alleged offence or for any offence arising from that charge could be sustained, as there could be no basis.

 

In IKO vs. THE STATE 2004 CAC 73 at 102, it was held that where it cannot be said that the offence has been proved beyond reasonable doubt, accused must be acquitted. Furthermore, it is obvious from the record of trial that in all the series of adjournments in the purported trial, the prosecution was either absent or the accused was absent, howbeit on the date the said trial commenced, the counsel of the accused person’s choice was yet to appear when the charge was read to him in spite of his information that his counsel was on his way. That was a clear case of implied request for adjournment.

The non consideration of that implied request was clearly a breach and violation of the Appellant’s right to fair hearing in that his right to be represented by counsel was denied.

 

see GOKPA V. I.G.P. (1962) 1 ALL NLR 423; WAZIRI V. THE STATE (1997) 3 NWLR Pt.496 Pg.689 at 723; OYAKHERE V. THE STATE (2005) 15 NWLR pt.947 Pg.159 at 175, OGBEH V. FRN (2002) 10 NSC QR Pg. 496 at 509; GOKPA V. I. G. (1962) 1 All NLR 423; UZODINMA V. C.O.P. (1983) 3 NCLR 25; UDOFIA V. STATE (1988) 7 SC Pt.11 pg.59 at 68.

 

Where there is a breach of the right of fair hearing as in this case, a fundamental right to representation by counsel, the trial, and conviction is automatically a nullity as it is void.

 

Such proceedings is a violation of the constitutional guarantee for the breach; and such a decision arrived at or any proceedings taken pursuit thereto in that circumstance is liable to be set aside.

 

See GBADAMOSI VS. DAIRO (2007) VOL. 145 LRCN 508 at 523 PAR. 00 PER NIKI TOBI (JSC as he then was).

 

In that case the learned law lord of the Supreme Court of Nigeria said “fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the constitution, the breach of which will nullify the proceedings in favour of the victim. Constitutional provisions are construed in the light of the facts and the facts alone. It cannot be construed outside the facts. Accordingly, a party alleging the breach must show clearly from the facts of the case that the right is violated or breached.” The Appellant herein, who is presumed innocent until proved guilty was charged with an offence not indicated to have been committed yet on the date of the charge. That means, he had committed no offence on the date of the charge.

 

He was however convicted and sentenced for an offence on which he was not charged on the ground that he had pleaded guilty to possession. I strenuously perused the record and find that there was no charge for the offence upon which he was alleged to have pleaded guilty.

No man shall be convicted or sentenced or suffer any deprivation in liberty or property unless for a sentence for an offence which he had been tried and found guilty. In this case, there was no arraignment on the offence upon which the conviction or sentence was made. Be it tagged a reduced or lesser offence or whatever; it is my firm view that in the absence of any arraignment and trial for that offence the conviction and sentence was illegal and ought be set aside.
IN MAJOR A. A. ADEBAYO AND NIGERIAN ARMY CA/L/334/01, the judgment of this court delivered on 5/3/12 at the Lagos Division, I quashed a conviction and sentence on an offence not charged, as it did not, after all, arise as a lesser offence from the ingredient of a greater offence charged and proved. I held that it was an illegal conviction and sentence and quashed same.

 

The sentence for life imprisonment was said to be for the lesser offence of being in possession of Indian hemp.

 

Even if the quantum of sentence of imprisonment was right, it is clear in law that that sentence cannot, abinitio, be imposed, as the so-called greater offence was not established as it was terribly a non-existent offence.

 

IN the case OF THE NIGERIAN AIRFORCE VS. KAMALDEEN 4 Criminal Appeal cases page 144 DAHTRU MUSTAPHA (JSC) as he then was, in his leading judgment held at page 160, paragraph G – I of the report thus:-

 

“In any event, for the provisions of section 142 to apply to enable the GCM to convict for lesser offences, it must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence see OKWUWA VS. THE STATE (1964) 1 ALL NLR 366 where this court stated in a passage thus:-

 

“The lesser offence is a combination of some of the several particulars making up one offence charged, in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged.”

 

Under our criminal jurisprudence the power of a court exercising criminal jurisdiction to convict an alternative offence or lesser offence is limited and cannot be exercised outside the limits laid down by law. I entirely agree with the Court of Appeal that the GCM in the instant case was wrong to find the respondent guilty of the “lesser offences.” Under lesser 103(1) of prejudicial conduct affecting discipline when it found the respondent not guilty of the offences of forgery. I resolve issue 4 in favour of the respondent against the Appellant.”

 

The Appellant herein was not charged in law. He could not therefore have been convicted. Even if he was thought to have been charged, for the breach of his fundamental right to fair hearing, the entire proceedings was a nullity. A lesser offence could not therefore flow from same to found a conviction as for a lesser offence.

 

He was not specifically charged for the offence he was sentenced upon and on the purported or incompetent plea. In law, a court of trial is entitled to draw inferences from the facts of the case and the record to determine an issue addressed or raised at the trial, even if it is not specifically raised as an issue by the parties on appeal. See GBADAMOSI VS. DAIRO (2007) 145 LRCN 508. In DAIRO (Supra) page 508 at 523, par. EE per TOBI JSC, it was stated thus:-
An Appellate Court may draw conclusion or make inference from the record before it. Conclusion or inference borne out of/from the record cannot be branded as fresh point of law. A fresh point of law is a new point of law which was not raised by any of the parties at the trial of the case. A point of law which was raised by the parties at the trial cannot be a fresh point of law.”

The Appellant, had at the trial informed the court that he was expecting his counsel, who was on his way. The charge brevimanu or instanto was read to him. It is apparent from the record and clear inference may be drawn that Appellant had raised the point of law as to his right of fair hearing ie his constitutional right to be represented by a counsel of his choice in the purported criminal trial.

 

On the totality of the facts, circumstances and the views I have expressed above, I am certain that the proof of the guilt of the appellant beyond reasonable doubt to ground or to sustain his conviction and sentence had not been made. In ISIBOR VS. THE STATE 2004 1 Criminal Appeal Cases Page 103 at 105 par. D – F it was held thus: “It seems to me after a careful perusal of the issues, that in framing them, that care should have been taken to remember that in an appeal against conviction for a crime, the focus has always been whether the guilt of the Appellant was established beyond reasonable doubt. This is because it is settled, law that the burden lies on the prosecution to establish the guilt of the Appellant as stated above. For that reason, the prosecution has a right to call evidence that relate to and connect the accused with the offence for which he stands charged.”

 

In the circumstance, I think the conviction and sentence for life on the offence of unlawful possession was not only wrongful, but illegal and in utter violation of the fundamental right to fair hearing. It had occasioned a miscarriage of Justice. The exercise of conviction and sentence was not an exercise in proof of guilt beyond reasonable doubt in the circumstances.

 

It must be borne in mind that in all criminal cases, the prosecution has throughout the burden to prove beyond reasonable doubt the guilt of the person charged. See MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 373, 373; LORI VS. THE STATE (1980) 8 – 11 SC 81, AMEH VS. THE STATE (1978) 6 – 7 SC. 27. In IKO VS. THE STATE (2004) CAC 73 it was held “In the instant case, there was no evidence that proved beyond reasonable doubt that the Appellant raped the prosecutrix as alleged. l, therefore must reverse the judgments of the court below and the trial court convicting the appellant of the offence of rape.
The judgments of the court below affirming the judgment of the trial court is hereby set aside.

 

The Appellant is hereby discharged and acquitted for the above reasons and fuller reasons given in the judgment of my learned brother KALGO JSC”‘
The circumstances of this case on appeal as transpired at the trial court is such that I must for the reasons adumbrated herein before come to the compelling conclusion that the conviction and sentence of the Appellant should be set aside, quashed and a discharge entered as the verdict that meets the justice of the appeal. The plea for leniency in sentence, not withstanding, a court cannot by consent or acquiescence of an accused person or prosecutor proceed to convict for an offence not charged or proved.

 

There can be no waiver of a statutory, nay a constitutional duty in law. Appeal allowed. Conviction and sentence set aside. Appellant is discharged.