CORAM

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PARTIES

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CHARLES DURU

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FEDERAL REPUBLIC OF NIGERIA

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Appellant was arraigned with one other person before the Federal High Court, Lagos Division on two counts of conspiracy to deal in cocaine and conspiracy with intent to export cocaine. Upon their arraignment, they pleaded guilty to the Charge and after a review of the facts, the lower Court convicted and sentenced them to three years and four years imprisonment respectively on each of the two counts. The sentences were ordered to run consecutively. The Appellant was dissatisfied with the decision of the lower Court and appealed to the Court of Appeal vide a two Notices of Appeal, later filed an Amended Notice of Appeal. However, the extant Notice of Appeal on which the appeal was argued on is the Further Amended Notice of Appeal filed on 22nd January, 2019.

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HELD

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Appeal Dismissed

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ISSUES

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Whether or not the learned trial Court complied with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and all other applicable laws especially the Administration of Criminal Justice Act, 2015 in the arraignment of the Appellant so as not to make the proceedings before the trial Court a nullity. Whether considering the totality of the proceedings before the trial Court, the Appellant was given a fair hearing by the Court.

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RATIONES DECIDENDI

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ARRAIGNMENT – FUNDAMENTAL NATURE OF AN ARRAIGNMENT- CONSEQUENCES OF A DEFECTIVE ARRAIGNMENT

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“Now, an arraignment is about taking the plea of a defendant in a criminal trial. The procedure provides the defendant the opportunity of giving his formal response of guilty, not guilty, or, still, no contest to the Charge. Arraignment is one of the fundamental requirements of a valid trial. Given its fundamental nature, objection to the plea for being in contravention of the constitutional and procedural requirements on arraignment, though more appropriately taken before trial, may be raised even on appeal, as in the instant case. Whenever the arraignment is defective, an Appellate Court will intervene as the defect renders the entire proceedings a nullity. See Kajubo vs. The State (supra), Eyorokoromo vs. The State (1979) 6-9 SC 3, Mohammed vs. FRN (supra), and FRN vs. Abubakar (2019) LPELR (46533) 1 at 7-8. The arraignment and taking the plea of a defendant in a criminal trial is the commencement of the trial. It is at that stage that the defendant appears in Court, the Charge is read and explained to him and to his understanding and he makes his plea thereto. It is a very fundamental aspect of a criminal trial and underscores the need for strict and mandatory compliance with the requirements in respect thereof. Any criminal trial, no matter how well conducted without the plea of the defendant having been properly taken is a nullity: Sanmabo vs. The  State (supra), Alake vs. The State (1991) 7 NWLR (PT 205) 567 and Edibo vs. The State (2007) LPELR (1912) 1 at 15. –

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ARRAIGNMENT – STATUTORY PROVISIONS ON ARRAIGNMENT

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“The legal provisions on the front burner in this issue are Section 36 (6) (a) of the 1999 Constitution and Sections 271 , 274 (1) and (2) and 356 (2) of the Administration of Criminal Justice Act. The provision of the Constitution is as follows:
36 (6) 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.
The stipulations of the Administration of Criminal Justice Act are as follows: 271 (1) Before a defendant takes his plea, the Court shall inform him of his rights under the provisions of Section 269 of this Act. (2) The defendant to be tried on a charge or an information shall be:
(a) brought before the Court unfettered unless the Court sees 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 (b) called upon to plead instantly unless, where the person is entitled to service of the information, he objects to the non-service and where the court finds that he has not been duly served. (3) The Court shall record the fact that it is satisfied that the Defendant understands the charge or information read over and explained to him in the language he understands, and shall record the plea of the Defendant to the charge or information as nearly as possible in the words used by him.
274 (1) Where a defendant pleads guilty to an offence with which he is charged, the Court shall: (a) record his plea as nearly as possible;
(b) invite the prosecution to state the fact of the case; and
(c) enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution. (2) Where the Court is satisfied that the defendant intends to admit the truth of all the essential elements of the offence for which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary.
356 (2) Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the Court shall proceed to sentence.
In Idemudia vs. The State (supra) at 222, Karibi-Whyte, JSC (of blessed memory) stated: It would seem to me that the mandatory provisions of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence or explanation ex facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending an accused person, the taking of the plea by the Court it ought to be presumed in favour of regularity, namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken. Omnia praesumuntur rite etsolemniteresseacta. Accordingly in the absence of proof to the contrary the presumption prevails. See also
Section 150 (1)  Evidence Act [now Section 168 (1) of the Evidence Act, 2011 ]. It does not seem to me that the requirement that the judge should be satisfied that the charge has been read and explained to the accused is one which need to appear on the record and the non-appearance of which affects the justice of the case. It is good practice to so indicate. It is sufficient on the record as a whole if it could be gathered that the accused understood the nature of the charge.
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COUNSEL – DUTY OF COUNSEL TO NOTIFY THE COURT WHERE THE DEFENDANT DOES NOT UNDERSTAND THE LANGUAGE USED IN THE TRIAL

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“It is trite that it is the duty of counsel to notify the Court where the defendant does not understand the language used in the trial. In Durwode vs. The State (2000) LPELR (973) 1 at 28-29, Onu, JSC stated:
In the realm of criminal justice, it is a cardinal principle of our jurisprudence that it is the duty of the accused or his counsel, acting on his behalf to bring to the notice of the Court, the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause for complaint The fact that the accused does not understand the language in which the trial is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing to the notice of the Court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time He may not be able to have a valid complaint afterwards, for example, on appeal.
See also Akinlolu vs. The State (2017) LPELR (42670) 1 at 44-45 and Madu vs. The State (1997) 1 NWLR (PT 482) 386 at 402” . –

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PRESUMPTION OF REGULARITY –PRESUMPTION OF REGULARITY THAT A CHARGE WAS READ AND EXPLAINED TO THE APPELLANT BY THE REGISTRAR OR OTHER OFFICER OF COURT AS STIPULATED IN SECTION 271 (2) (A) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT

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“By Section 122 (2) (m) of the Evidence Act, the Court shall take judicial notice of the course of proceeding and all rules of practice in force in any Court established by or under the Constitution. See Aiyeola vs. Pedro (2014) 13 NWLR (PT 1424) 409, NJC vs. Agumagu (2015) 10 NWLR (PT 1467) 365 at 419 and Deriba vs. The State (2016) LPELR (40345) 1 at 34. Accordingly, I take judicial notice of the fact that when the Court directs or orders that a Charge be read, that it is the Registrar or other officer of Court that reads the Charge, not the Prosecutor. Equally, applicable is the presumption of regularity enshrined in Section 168 (1) of the Evidence Act. By the stipulation the Court is entitled to presume that the Charge was read and explained to the Appellant by the Registrar or other officer of Court as stipulated in Section 271 (2) (a) of the Administration of Criminal Justice Act . See Sule vs. The State (2017) LPELR (47016) 1 at 33-34, Salisu vs. FRN (2017) LPELR (47146) 1 at 11-14 and 24-25 and Olanrewaju vs. The State (2020) LPELR (49569) 1 at 11-13. The presumption of regularity is a rebuttable presumption. The Appellant has not been able to rebut the said presumption in order to dislodge the presumption that the Charge was read to the Appellant in the manner stipulated under Section 271 (2) (a) of the Administration of Criminal Justice Act . In any event, I think it is good law to state that it is not fatal that the Records did not state the name of the Registrar or other officer of Court that read and explained the Charge to the Appellant. The non-reflection of the person did not mislead the Appellant, who was represented by Counsel and also did not occasion any miscarriage of justice. See Abdullahi vs. The State (2018) LPELR (44455) 1 at 11-12. –

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PRESUMPTION OF REGULARITY – WHETHER THE PRESUMPTION OF REGULARITY WOULD APPLY UPON THE FAILURE OF THE COURT TO RECORD TO ITS SATISFACTION THAT THE DEFENDANT UNDERSTANDS THE CHARGE THAT WAS READ OVER AND EXPLAINED TO HIM

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“Section 168 (1) of the Evidence Act provides for the presumption of regularity of judicial acts. By Section 145 (2) of the Evidence Act, the Court shall regard as proved the fact that the judicial act was regularly done, unless it is disproved. There is nothing in the Administration of Criminal Justice Act which proscribes the proof of judicial acts by presumption. I am consequently not at one with the Appellant in his contention that there can no longer be presumption of regularity because Section 271 (3) of the Administration of Criminal Justice Act expressly requires the Court to record its satisfaction that the defendant understands the charge that was read over and explained to him. No; it is because the proceedings had been regularly done, but the Court inadvertently did not record its satisfaction, that the presumption of regularity would still apply, unless rebutted; just as it used to apply under the provisions of the Criminal Procedure Act. Section 271 (3) of the Administration of Criminal Justice has not altered our corpusjuri s as it relates to the applicability of the presumption of regularity. Forgive me for being prolix, but I restate that the Appellant was represented by Counsel. The law is that the Counsel has the duty to inform the court if the defendant does not understand the charge. The Appellants Counsel participated actively in the proceedings as borne out by the Records of Appeal. He did not inform the Court that the Appellant did not understand the Charge. This being so, there can be no doubting the fact that the Court was satisfied that the Appellant understood the Charge. The non-reflection of this in the Records is therefore not fatal. Even though it would have been proper and ideal to so reflect it, since Section 271 (2) of the Administration of Criminal Justice Act employs the mandatory word shall, the Appellant has not rebutted the presumption of regularity and has also not established in what respect he suffered prejudice or how a miscarriage of justice was occasioned as a result of the non-reflection of the same in the Records: Olanrewaju vs. The State (supra). Therefore, in the diacritical circumstances of this matter, where the Appellant was represented by Counsel who participated actively in the proceedings, and the Charge was read and explained to the Appellant without any objection by his Counsel that he did not understand the Charge, it is not fatal that the Court did not record that it was satisfied that the Appellant understood the Charge. The facts of this matter are clearly distinguishable from the unreported decision of this Court in Koleosho vs. FRN (supra) and Falola vs. FRN(supra) . In KOLEOSHO , the appellant therein was not represented by Counsel at the trial Court, while in FALOLA, even though the Appellant was represented by Counsel, this Court found that the said counsel did not take any part in the proceedings. As stated by Dongban-Mensem, JCA (now PCA):
It is instructive to state that the Appellant was represented by J. Aina. The records of proceeding did not record J. Aina as taking any part in the proceedings other than his appearance being recorded…
The conflating of the foregoing is that the arraignment of the Appellant was done in a manner that was substantially regular with the requirements of the Administration of Criminal Justice Act. The question of non-reflection of who read the Charge and non-recording of the fact that the Court was satisfied that the Appellant understood the Charge are minor infractions which the Appellant has not succeeded in establishing that he was prejudiced thereby or that a miscarriage of justice was occasioned. See Ogunye vs. The State (1999) 4 SCNJ 33 at 50, Abubakar vs. FRN (2017) LPELR (43354) 1 at 28-29, Salisu vs. FRN (supra), FRN vs. Mohammed (2014) 3 SCM 86 and Olanrewaju vs. The State (supra). In Oko vs. The State (2017) LPELR (42267) 1 at 48-49 , Peter-Odili, JSC stated: What the appellant is seeking is a rigid and inflexible approach in the application of the law before full compliance would be said to have been carried out. That is neither the intendment of the legislature nor within the spirit of the law itself which in my view and in keeping with interpretations already made thereto is that a substantial compliance showing that what is expected has been done is all the law ask of the Court of trial. A narrow and strict interpretation of the provisions and application would not serve the interest of justice but would defeat the course of justice. There is no need to put down the minute details of what took place at the plea taking, such as the language of explanation and who made the explanation and the issue of satisfaction of the judge that accused was explained to and he understood. It is sufficient that substantial compliance was in effect. See also Edun vs. IGP (1966) 1 ALL NLR 17, Peter vs. The State (supra) and Aladu vs. The State (1998) 8 NWLR (PT 563) 618.
In a coda, though Section 271 (3) of the Administration of Criminal Justice Act provides for the Court to record that it is satisfied that the defendant understood the Charge, it is not fatal if it is not recorded, when as in the instant case the defendant was represented by Counsel who did not inform the court that the defendant did not understand the Charge. It is a fardel or responsibility which may have different consequences where the defendant is not represented by Counsel. The presumption of regularity would therefore inure, the same not having been rebutted by the Appellant, that the requirements of Section 271 (2) (a) and (3) of the Administration of Criminal Justice Act were substantially complied with such that no prejudice or miscarriage of justice was occasioned to the Appellant.-

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CRIMINAL TRIAL- DUTY OF COURT WHERE A DEFENDANT PLEADS GUILTY UNDER SECTION 274 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT

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“Section 274 of the Administration of Criminal Justice Act requires the Court, where a defendant has pleaded guilty, to invite the prosecution to state the facts of the case and thereafter enquire from the defendant whether his plea of guilty is to the fact as stated by the Prosecution. The Court shall, if satisfied, that the defendant intends to admit the truth of the essential elements of the offence to which he pleaded guilty, convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary. Furthermore, by Section 356 (2) of the Administration of Criminal Justice Act , where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the court shall proceed to sentence.
It is based  on the foregoing provisions of the Administration of Criminal Justice Act, that the question of whether there was a fair hearing or fair trial can be interrogated. The Appellant having been properly arraigned, and he pleaded guilty, the pertinent question would be whether the proceedings leading up to his conviction and sentence were in line with the stipulations of the Administration of Criminal Justice Act, in which case there cannot be any question as to whether there was a fair hearing or fair trial. Let me hasten to state that the Appellants submission that the Prosecution Counsel was both counsel and witness in the matter cannot be correct. The role played remained that of counsel since by Section 274 (1) (b) of the Administration of Criminal Justice Act , the Court upon a plea of guilty shall invite the prosecution to state the facts of the case. The learned counsel stating the facts of the case and tendering documents in support of the facts cannot be equiparated to being a witness in the matter since the effect of the Appellant having pleaded guilty is that it obviated the need for a formal hearing: Omoju vs. FRN (2008) LPELR (2647) 1 at 19,Dongtoe vs. Civil Service Commission, Plateau State (2001) LPELR (959) 1 at 37-38, Mohammed vs. FRN (2013) LPELR (21384) 1 at 16, Amanchukwu vs. FRN (2007) 6 NWLR (PT. 1029 ) 1 and Nkie vs. FRN (2014) LPELR (22877)1”. –

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BURDEN OF PROOF- NATURE OF THE BURDEN OF PROOF ON A PROSECUTION WHEN AN ACCUSED PERSON PLEADS GUILTY

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“Apropos the foregoing, it is necessary to specifically address the alleged denial of fair hearing and whether the offence charged was proved that it was actually hard drugs. I will invite my Lord, Tobi, JSC (of blessed memory) to speak to these matters. It is from his leading judgment in Omoju vs. FRN (supra). He had this to say at page 18:
…learned counsel submitted that the appellant was denied fair hearing. How? In what way? An accused person who pleads guilty to an offence is not entitled to a hearing and so the issue of fairness or unfairness of a hearing is neither here nor there. In other words, by entering a guilty plea, hearing is foreclosed, as the next and last procedural step of the Judge is to convict and pass appropriate sentence.
The learned jurist continued on the issue of burden of proof and this is what he said at pages 20-21: It is in evidence that the prosecution tendered,
(a) forensic or drug analysis report;
(b) packing of substance form;
(c) certificate of test analysis;
(d) recovered drugs;
(e) the statement of the appellant; and
(f) travelling documents…
These were admitted without objection by the appellant. And so I ask: what is the burden of proof palaver? The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like the feather of an ostrich. It no longer remains the superlative compelling burden of proof beyond reasonable doubt. After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and the mens rea or actus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non. –

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PLEA OF GUILT – EFFECT OF A PLEA OF GUILTY BY AN ACCUSED PERSON

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“I have read the decision in FRN vs. Michael (supra). The facts which informed the decision in MICHAEL are distinguishable from the facts of this matter. In MICHAEL, the defendant was not represented by counsel, which state of affairs called for more circumspection by the trial Court. As it was in MICHAEL, so also it was in Koleosho vs. FRN (supra) and FRN vs. Daniel(supra), all referred to by the Appellants counsel. There was no defence counsel in the said matters at the trial Court and the trial judge in DANIEL acted with the required circumspection. In the instant case, the Appellant was represented by counsel who actively participated in the proceedings. Facts are the fountainhead of the law. The pronouncements in MICHAEL quoted by the Appellant are intimately linked to the circumstance of the case, id est, that the defendant was not represented by counsel. The situation is different in this matter. The Appellant was represented by counsel. The pronouncements in MICHAEL can therefore not be pulled out of context and given a general application. It is not done. See Fawehinmi vs. NBA (NO.2) (1989) 2 NWLR (PT. 105) 558 at 650, Adegoke Motors vs. Adesanya (1989) 5 SC 92 at 100 and Onwuamadike vs. IGP (2018) LPELR (46039) 1 at 31. The Apex Court recently had cause to pronounce on the effect of a plea of guilty by an accused person. This was in Mohammed vs. The State (2019) LPELR (47044) 1 at 17-19, which is latter in time than FRN vs. Michael (supra) relied upon by the Appellants counsel. Hear the words of Muhammad, JSC:
It is evident from the record of appeal that the charge was read and fully explained to the appellant and he pleaded guilty to same. The further factthat the appellant was represented by counsel at the trial Court, the propriety of the affirmation of which decision by the lower Court is being agitated in this appeal, the chance for success of the appeal is further lessened. Appellants plea of guilty is as good as judicial confession, his valid admission of the commission of the two offences in the charge. It must be restated that appellant was represented by counsel at trial, who this Court insists, is duty bound to raise all objections in the conduct of trial belatedly being presently sought to be addressed. The appellant, whose counsel failed earlier to raise these concerns is stopped from doing so now So be it. I kowtow. See also Sharfa vs. The State(1992) LPELR (3038) 1, Torri vs. The National Park Service Of Nigeria (2011) LPELR (8142) 1, Mohammed vs. The State (1991) 5 NWLR (PT 192) 438, Akpan vs. The State (2008) 14 NWLR (PT 1106) 72 and Alo vs. The State (2015) LPELR (24404) 1.
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Administration of Criminal Justice Act, 2015|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Criminal Procedure Act|Evidence Act, 2011|

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