IBRAHIM YAKUBU V ELISHA YAKUBU
March 31, 2025BALA ALHAJI ILYASU v. THE STATE
March 31, 2025Legalpedia Citation: (2020) Legalpedia (CA) 31113
In the Court of Appeal
HOLDEN AT LAGOS
Sun Jun 28, 2020
Suit Number: CA/LAG/CR/192/2019
CORAM
PARTIES
NNAMDI OKOYE
COMMISSIONER OF POLICE
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Defendant/Appellant at the Federal High Court, Lagos Division, was charged on a four count charge of conspiracy and unlawful possession of forged oil sheen spray. On 20th January 2010, the Prosecution filed a motion to amend the Charge in order to add a second accused person to the Charge. The motion to amend the Charge was heard by the lower Court and he made an order granting the application. So in granting the application as prayed, the lower Court gave the prosecution leave to amend the Charge. The leave having been granted, and without there being any amended charge filed in terms of the leave that was granted, the plea of the Defendants were taken by the lower Court. Subsequently, the trial Judge was transferred and the matter was reassigned to another judge. When the matter came up, the Prosecuting Counsel informed the lower Court that the matter was a reassigned matter and that it was for trial. He then applied for a date for trial since his witnesses were not in Court. The learned Defence counsel confirmed the position as stated by the Prosecution, whereupon the matter was adjourned for definite hearing without fail. After the trial, without the amended charge filed, the court took the plea of the Appellant the same day it delivered its judgment, and was given a custodial sentence. The Appellant being dissatisfied with the judgment has appealed against the same.
HELD
Appeal Allowed
ISSUES
Whether the procedure adopted by the lower Court in the amendment of charge, arraignment and trial of the Appellant in Charge No. FHC/L/225C/2009 is valid in law? Whether the lower Court was right under the law to convict the Appellant on the offences of conspiracy and unlawful possession of forged above oil sheen spray based on the Prosecution evidence before the Court? Whether the terms of imprisonment the Appellant was sentenced to is excessive in law?
RATIONES DECIDENDI
ISSUES FOR DETERMINATION- WHETHER A RESPONDENT WHO HAS NEITHER FILED A CROSS APPEAL NOR RESPONDENT’S NOTICE CAN RAISE FRESH ISSUE OUTSIDE THE APPELLANT’S GROUND OF APPEAL
“The Appellant in his Reply Brief urged the Court to discountenance the issues distilled by the Respondent, since the Respondent, not having filed a cross-appeal or Respondents Notice, cannot raise fresh issues outside the Appellants grounds of appeal. By all odds, it is the law that issues for determination in an appeal must be predicated on the grounds of appeal, and that a Respondent who has neither cross appealed nor filed a Respondents Notice cannot validly raise any issue for determination that is outside the Appellants grounds of appeal. See APGA vs. Umeh (2011) 8 NWLR (PT 1250) 544 and PML (Nigeria) Ltd vs. FRN (2017) LPELR (43480) 1 at 18-19. The Respondent neither filed a cross appeal nor Respondents Notice; so the Appellant will be correct in his contention if, in fact, the issues distilled by the Respondent do not derive from the Appellants ground of appeal. I have insight-fully considered the three issues formulated by the Respondent and even though the Respondent stated that it raised the issues from the argument in various paragraphs of the Appellants Brief, the said issues are in actual sense rooted in the grounds of appeal. The Respondents issue number one is grounded in the complaint in ground 3 of the grounds of appeal; issue number two addresses the complaint in grounds 4 and 5 of the grounds of appeal, while issue number three is based on grounds 1 and 2 of the grounds of appeal. It therefore follows that even though the Respondent did not cross appeal or file a Respondents Notice, the issues it distilled for determination are not incompetent as the said issues derive from, and are firmly rooted in the Appellants grounds of appeal.”
ARRAIGNMENT – DUTY OF AN APPELLATE COURT UPON AN INVALID ARRAIGNMENT
“It is rudimentary law that when it is alleged that there has been invalid arraignment in that the mandatory provisions of Section 215 of the Criminal Procedure Act (which was the regnant legislation at the time the trial commenced at the lower Court) had not been compiled with, all that an appellate Court needs to do is to examine the Records on the day of the arraignment to see if the arraignment is proper. It is only the Record that has to be examined.”
ARRAIGNMENT – MEANING AND REQUIREMENT OF A VALID ARRAIGNMENT
“Arraignment is a very important step in the prosecution process. It is the initial step in the prosecution of a person accused of a committing a crime in a criminal trial: Yahaya vs. The State (supra) at 307. In Okeke vs. The State (2003) 15 NWLR (PT 842) 25 at 73 Ogundare, JSC stated:
An arraignment is a not a matter of mere technicality; it is a very important initial step in the trial of a person in a criminal charge. All the authorities recognize that where there is no proper arraignment, there is no trial.
In his contribution at page 95, Iguh, JSC said:
Without a valid arraignment of the accused person, no trial in law would have commenced and, no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void. (Underlining supplied)
It is the minimum requirement of the law that necessary steps to a valid arraignment as provided in Section 215 of the Criminal Procedure Act must be complied with in order to ensure that the constitutional provision of fair hearing which inures in favour of an accused person, especially as it relates to Section 36(6) of the 1999 Constitution which, inter alia, requires that every person charged with a criminal offence shall be informed promptly in the language he understands and in detail of the nature of the offence, are met. Given the preeminent position which arraignment occupies in a valid criminal trial, the required standard must be adhered to.”
ARRAIGNMENT – IMPORTANCE AND REQUIREMENT FOR A VALID ARRAIGNMENT UNDER SECTION 215 OF THE CRIMINAL PROCEDURE ACT
“Let me iterate that the law remains that without a valid arraignment, no trial in law would have commenced. Furthermore, that arraignment is not a matter of mere technicality but the very important initial step in the trial of a person in a criminal charge: Okeke vs. The State (supra). If the initial step in a criminal charge is for plea to be taken and then evidence adduced to prove the Charge, when was the evidence adduced in this matter seeing that the lower Court delivered judgment immediately after it took plea. (See page 721 of Volume II of the Records). It is important to underscore that it is not as though any plea whatsoever was taken before Abang, J, prior to the plea taken on the date of the judgment. No. There was no plea. When a matter is to start afresh before another Judge, fresh plea must first be taken by the new judge before proceeding any further in the matter: Sanmabo vs. The State (supra) at 316-317. The lower Court ordered that everything done, prior to the plea taken on the date of judgment, was properly done. Now, the necessary steps to a valid arraignment as required by Section 215 of the Criminal Procedure Act are well settled beyond peradventure by a legion of cases. It is the requirement of the law that for there to be a valid arraignment, the mandatory stipulations of Section 215 of the Criminal Procedure Act must be complied with, namely:
a) The accused must be placed before the Court unfettered unless the Court shall see cause to otherwise order.
b) The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the Registrar or other officer of the Court.
c) The accused shall then be called upon to plead to the charge thereto instantly otherwise, where there is such an objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.
d) The plea of the accused shall also be instantly recorded by the Court.
The above requirements have been held to be very fundamental and renders a trial a nullity where they are not complied with. See Kajubo vs. The State (1988) 1 NWLR (PT 73) 721 at 732, Eyorokoromo vs. The State (1979) 6-9 SC 3, Madu vs. The State (2012) 15 NWLR (PT 1329) 405 at 439, FRN vs. Abubakar (2019) LPELR (46533) 1 at 7-16, Hassan vs. FRN (2016) LPELR (42804) 1 at 22-24, Musa vs. The State (2016) LPELR (42812) 1 at 34-36, Dauda vs. FRN (2017) LPELR (41910) 1 at 3-5, FRN vs. Iwuafor (2019) LPELR (46901) 1 at 15-18, FRN vs. Kayode (2019) LPELR (48997) 1 at 12-14 and 18 and Akeem vs. The State (2017) LPELR (42465) 1 at 35-36. In FRN vs. Iwuafor (supra) it was held that the proper arraignment of an accused person is the most important aspect of a criminal trial. This is because it affects the accused persons constitutionally guaranteed right to fair hearing provided in Section 36 (6) of the 1999 Constitution. Where the charges are not read and explained to an accused person when he was arraigned and before adduction of evidence commenced, it is a flagrant non-compliance with Section 215 of the Criminal Procedure Act, which impinges on the constitutional right of the accused person to a fair hearing. Such a trial is nullity. See Hassan vs. FRN (supra) and Dauda vs. FRN (supra). In Musa vs. The State (supra), the appellant therein was arraigned on a three count Charge, but the Records showed that her plea was not taken in respect of Count 2. The apex Court held that it was a fundamental vice which vitiated the trial. In the instant case, the plea of the Appellant was taken by Abang, J. after adduction of evidence, address of counsel and after the matter had been adjourned for judgment. The law is clear that upon the matter being reassigned to Abang, J. after the transfer of Sani, J., the matter was to start de novo and a new plea ought to be first taken before Abang, J., before any further steps: Iche vs. The State (2013) LPELR (22035) 1 at 48-49 and Sanmabo vs. The State (supra).”
ARRAIGNMENT – WHETHER A PLEA TAKEN ON THE DATE FIXED FOR JUDGMENT IS IN COMPLIANCE WITH THE PROVISIONS OF SECTION 215 OF THE CRIMINAL PROCEDURE ACT
“In circumstances, where the charge was not read and plea taken, can the order of retrospective compliance made by the lower Court relate back to before evidence was adduced? Can it relate back to the Court being satisfied of a state of affairs that did not exist? Definitely not! With due deference to the lower Court, the plea it took on the date fixed for judgment and the consequent regularizing of all that had transpired previously, did not, in the diacritical circumstances of this matter, remedy the non-compliance with the stipulations of Section 215 of the Criminal Procedure Act before it embarked on hearing in the Charge. The Appellant has argued that the dictum of Eko, JSC in Onwe vs. The State (supra) relied upon by the lower Court, to the effect that the procedural mix-up in plea not being taken before adduction of evidence was an acquiescence and a waiver of non-compliance with the strict procedure of taking plea to the Charge, is an obiter dictum. In Onwe, there was no issue before the apex Court on whether the decision of this Court that Section 215 of the Criminal Procedure Act was not complied with by the trial Court is the correct decision. The sole issue before the apex Court in ONWEs case was whether the order for retrial made by this Court was the proper order. I will not polemicize on whether the said dictum of Eko JSC is an obiter dictum or not. However, I have noted that the case of Onwe vs. The State (supra) was decided on 30th June, 2017. The cases of FRN vs. Abubakar (supra), FRN vs. Iwuafor (supra) and FRN vs. Kayode(supra), where the apex Court reiterated the line of decisions that non-compliance with Section 215 of the Criminal Procedure Act renders the trial a nullity, were decided on 25th January 2019, 21st February 2019 and 14th June 2019 respectively. By the legal jurisprudential rule of posterior construction, the decisions which are later in time are to be preferred: Cardoso vs. Daniel (1986)2 NWLR (PT 20) 1 at 38-39, Seriki vs. Solaru (1965) NMLR 1, Ikeakwu vs. Nwankpa (1967) NMLR 224, Obiuweubi vs. CBN (2011) LPELR (2185) 1 at 34 and Mujakperuo vs. Ajobena (2014) LPELR (23264) 1 at 25. In the circumstances, I am unable to agree with the lower Court that the Appellant waived the procedural mix-up in his plea not being taken, by his participation in the trial. If as held by the lower Court there was such a waiver, why then did the lower Court take the plea for the first time on the date fixed for judgment? Without a doubt, there was no saving grace. The proceedings before the lower Court are caught by the execrable consequences of non-compliance with Section 215 of the Criminal Procedure Act and the attendant infringement of the right of hearing under Section 36 (6) of the 1999 Constitution which it occasioned. It was a nullity. It is as though there was never a trial and judgment. It is compliance with Section 215 of the Criminal Procedure Act that gives the trial Court jurisdiction to try the defendant arraigned before it. Where the said provision has not been complied with before commencement of hearing and adduction of evidence, the trial Court has no jurisdiction to exercise: Yahaya vs. The State (supra). The concomitance of the lower Court, not having first taken plea before it started taking the testimony of the witnesses, is that it was acting without jurisdiction. The plea which the lower Court took on the date it delivered judgment, did not cure the defect of having acted without jurisdiction. The fact that the plea of the Appellant was not taken before Abang, J. started taking the testimony of the witnesses is a violation of the provisions of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution. The stipulations of Section 215 of the Criminal Procedure Act are mandatory. They do not give room for exercise of discretion. Failure to comply with the provisions automatically rendered the proceedings a nullity: Lasisi vs. The State (2013) LPELR (20715) 1 at 10-11. It was therefore not open to the lower Court, as it did, to take the plea of the Appellant just before it delivered judgment and to purport to regularize the inutile trial it had conducted in breach of Section 215 of the Criminal Procedure Act and Section 36 (6) of the 1999 Constitution. The lower Court had no such discretion to exercise. The plea which the lower Court took on the date it delivered judgment, did not cure the defect of having acted without jurisdiction. The entire proceedings was a waste of precious judicial time as the defect of having acted without jurisdiction is extrinsic to the adjudication.”
PRESUMPTION OF REGULARITY- WHETHER THE PRESUMPTION OF REGULARITY WILL AVAIL A PARTY IN THE FACE OF SUBSTANTIAL NON COMPLIANCE WITH THE MANDATORY PROVISIONS OF SECTION 215 OF THE CRIMINAL PROCEDURE ACT
“Before I wrap up the consideration of this issue, let me state that I duly considered the Respondents invocation of the presumption of regularity of judicial and official acts under Section 168 (1) of Evidence Act. The said presumption is a rebuttal presumption. It will not avail the Respondent where as in this case there is ample evidence that no Amended Charge was ever filed. It will also not avail the Respondent where the Record is effulgent that the plea of the Appellant was not taken before adduction of evidence and that plea was only taken for the first time by Abang, J. on the date fixed for judgment. The presumption of regularity cannot avail where what was done at the trial Court cannot be said to be substantially regular in the face of the non-compliance with the mandatory provisions of Section 215 of the Criminal Procedure Act. See FRN vs. Iwuafor (supra) at 11.”
EXERCISE OF DISCRETION- ATTITUDE OF APPELLATE COURT TO INTERFERENCE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
“It is hornbook law that the sentence to be imposed upon conviction for an offence is at the discretion of the trial Court. But like all judicial discretions it must be exercised judicially and judiciously. An appellate Court is always reluctant to interfere with the way a trial judge exercised his discretion, but it would be compelled to do so if the discretion was wrongly exercised; if the exercise of discretion was tainted with some illegality or substantial irregularity; if there is a miscarriage of justice; or if it is in the interest of justice to interfere: Ogunsanya vs. The State (2011) 12 NWLR (PT 1261) 401 at 438.”
SENTENCE – NATURE OF THE SENTENCE FOR CONSPIRACY TO COMMIT A FELONY AND CONSPIRACY TO COMMIT A MISDEMEANOUR
“So, the Appellant, who is the 1st convict was sentenced to 7 years imprisonment in Count I which is for conspiracy and in respect of Count III which is the substantive offence, he was sentenced to six months imprisonment. I have already stated that no formal Amended Charge was filed, but the proposed Amended Charge annexed to the motion to amend the charge (see pages 93-94 of Volume I of the Records) charges the Appellant in Count I with conspiracy to commit a felony punishable under Section 516 of the Criminal Code Act. Count III, which is the substantive offence, is a charge for an offence contrary to Section 3 (2) and punishable under Section 3 (3) (b) of the Merchandise Marks Act.
In considering the contention under this issue, it is pertinent to set out the provisions of Sections 516 and 517 of the Criminal Code Act. They read:
516. Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.
517. Any person who conspires with another to commit any offence which is not a felony, or to do any act in any part of the world, which if done in Nigeria would be an offence but not a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour and is liable to imprisonment for two years. The offender cannot be arrested without warrant.
The above provisions prescribe different sentences for conspiracy to commit a felony and conspiracy to commit a misdemeanour. Furthermore, by Section 516 (reproduced above), where the punishment for the substantive offence is less than the seven years imprisonment prescribed therein, then the sentence for the conspiracy will be such lesser punishment.”
“FELONY”- MEANING OF THE TERM “FELONY”
“Section 2 of the Criminal Procedure Act assigns the following interpretation to the word felony: felony means an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony. See Dokubo-Asari vs. FRN (2007) LPELR (958) 1 at 19.”
SENTENCE- INSTANCE WHEN AN APPELLATE COURT WILL INTERFERE WITH THE SENTENCE IMPOSED BY A TRIAL COURT
“It is trite law that the sentence imposed by a Court must be in accordance with the relevant statute. A Court cannot impose a higher punishment than that prescribed for the offence. See Agbiti vs. The Nigerian Navy (2007) LPELR (4893) 1 and Onah vs. FRN (2017) LPELR (43535) 1 at 21-22. It is therefore translucent that the sentence of seven years imprisonment imposed by the lower Court for the offence of conspiracy charged is wrong in principle in the light of the fact that the substantive offence is not a felony. The sentence is therefore manifestly excessive. An appellate Court would in such circumstances interfere with the sentence imposed in the interest of justice in order to obviate the evident miscarriage of justice occasioned: Adeyeye vs. The State (supra), Omokuwajo vs. FRN (2013) LPELR (20184) 1 at 32 and Abiodun vs. FRN (2018) LPELR (43838) 1 at 24-25.”
TRIAL DE NOVO – MEANING AND IMPLICATION OF TRIAL DE NOVO
“At this point. I will like to take a little excursion into what a trial de novo entails. The Black law Dictionary, 8th Edition, 1999 on page 1544 defined trial de novo in these words:
A new trial on the entire case, that is on both questions of fact and issues of law… Conducted as if there had been no trial in the first instance.
See Kajubo vs. State (1988) 1 NWLR (Pt. 73) 721; Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465. This Court per Onyenwnam JCA in Nana & Ors vs. Ningi & Ors (2018) LPELR-46399 (CA) expressed the meaning and implication of trial de novo on the previous proceeding. This is what his lordship said:
“By Wex Legal Dictionary, De Novo means from the new. When a Court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous Court to hear the case. The expression trial de novo means a new trial by a different tribunal. The Latin word means afresh, a new beginning again. Trial de novo is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. See: Black’s Law Dictionary Ninth Edition PageS 1431 AND 1645 ; Omosaye V. The State (2014) LPELR 22059 (SC). In a trial de novo the case must be proved anew or rather re-proved de novo, and therefore, the evidence and verdict given as well as the judges findings, at the first trial are inadmissible on the basis that prima facie they have been discarded or got rid of… This position of the law is consistent with the paragraph dealing with the effect of an order for a new trial, the learned authors of Phipson On Evidence 12th Edition At Page 706 Article 704 (last paragraph) stated: “In new trials, the case must be reproved de novo, and the evidence and verdict given, and the judge’s findings at the first trial are inadmissible. This meaning and purport of a de novo trial can by no means be thwarted.”
“TRIAL DE NOVO “ – CONSEQUENCE OF A “TRIAL DE NOVO “
“The apex Court drove home point in the case of Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & Ors (2007) 13 NWLR (Pt. 1050) 1131 per Muhammad JSC at pages 31-32 of (2007) LPELR-698 (SC) held thus:
The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Blacks Law Dictionary , de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered… new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ Court hears matter as Court of original and not appellate jurisdiction … that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to re-litigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.
See the case of Biri V. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G. This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo V. The State (supra):
The expressions “a new trial” “trial de novo “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments. This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given.
The consequence of a retrial order or a de novo (a Venire De Novo), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance. See: Kajubo V. The State (supra). In 1978 this Court per Idigbe, JSC in the case of Fadiora V. Gbadebo(1978) NSCL (Vol.1) 121; (1978) 3 SC 219 had cause to make the following observation.
We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.
When a case starts de novo, the legal consequence or implication is that all the proceedings and decision or order of the previous Court is null and void and of no effect and does not bind the Court which is starting the case de novo. See Ngige vs. Obi (No 1) (2012) 1 NWLR (Pt. 1280) 40. In this respect, the decision of this Court in FBN Plc vs. Tsokwa (2004) 5 NWLR (Pt. 866) 271 is instructive This Court held:
Where the hearing of a matter commences de novo, any action done or proceedings taken by or before the former Judge becomes abated and as such has no relevance. In the instant case, hearing commenced de novo before Audu, J. Any action done or proceedings taken before Bansi, J., therefore became abated and is of no relevance to the instant appeal. The trial by Audu, J., is a fresh trial independent of that by Bansi, J.”
CASES CITED
Not Available
STATUTES REFERRED TO
Administration of Criminal Justice Act, 2015|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|Criminal Code Act|Criminal Procedure Act|Evidence Act, 2011|Merchandise Marks Act|
